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IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: NDIKA, J.A.. MWAMPASHI. J.A.. And RUMANYIKA. J.A.1 CRIMINAL APPEAL NO. 570 OF 2021 BOAY S/O BURA........................... .......................................... APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Arusha) (Robert, 3.1 dated the 9th day of July, 2021 in Criminal Appeal No. 54 of 2020 JUDGMENT OF THE COURT 9th & 13th August, 2024 NDIKA. 3.A.: The appellant, Boay Bura, challenges the judgment of the High Court of Tanzania at Arusha, which upheld his conviction for unnatural offence and the life imprisonment sentence imposed on him by the District Court of Babati at Babati. In summary, the prosecution contended that on 23rdJanuary, 2019, the appellant had carnal knowledge of a seven-year-old boy, referred to as "the complainant," against the natural order in Moyamayoka village, located in the Babati District of the Manyara Region. The prosecution case was essentially as follows: on 23rd January, 2019, at approximately 12:00 p.m., the complainant (PW2) was dispatched by his mother (PW3) on an errand to collect milk from a neighbour. While on the way, he encountered the appellant, who seized and led him to a nearby bush. Subsequently, the appellant undressed him bare and initiated sodomisation. The complainant was weeping in profound agony throughout the entire time. Zebedayo Daudi (PW4), who was grazing cattle in the vicinity, responded to the complainant's frantic cries by rushing to the site of the crime. PW4 caught the appellant amid the commission of that debauched act. He managed to rescue the complainant from the clutches of the appellant whom he knew so well. The appellant turned tail and fled the scene. The complainant was taken to his mother (PW3) by PW4, who then informed her of the distressing news. PW3 examined the anus of her weeping son and noted bruises in the anal region, as well as what appeared to be fresh seminal fluid. After she reported the matter to the Village Executive Officer named Sophia and later to the police at Magugu Police Post, PW3 took her son to Magara Health Centre in Babati for medical examination and treatment. The complainant was examined by PW5 Benso Andrea, an Assistant Medical Officer, at the Health Centre on 24th January, 2019. In a medical examination report - PF3 (exhibit PI), his findings were that the complainant's anus was bruised and contained spermatozoa that were identified through laboratory analysis of a rectal specimen. He believed that a blunt object was used to aggressively penetrate the complainant's anus. WP.7703 Detective Corporal Fabiola (PW1) was involved in the certain aspects of the police investigation into the case. She explicitly stated that the appellant was in police custody at the Magugu Police Post when she was assigned the case on 24th January, 2019. In his short defence testimony, the appellant denied wrongdoing. He blamed his travails on PW3, the complainant's mother, alleging that she fabricated the case to settle scores with him over ownership of a certain landed property. The appellant was convicted of the charge by the trial court and sentenced to life imprisonment, as previously stated. He has now appealed to this Court after his initial appeal to the High Court was unsuccessful. In his two self-crafted memoranda of appeal, the appellant has presented sixteen grounds of appeal. We believe that the appeal is predicated on the following grievances, having examined them in light of the contesting submissions made by the parties at the hearing: first, that the appellant's delayed arraignment was in violation of section 32 (1) of the Criminal Procedure Act, Cap. 20 ("the CPA"). Secondly, that the preliminary hearing violated section 192 (2) and (3) of the CPA. Thirdly, that the testimony of PW2 was obtained in violation of section 127 (2) of the Evidence Act, Cap. 6. Fourthly, that the appellant was denied the opportunity to present two defence witnesses, which rendered the trial unfair. Fifthly, that the charge and the evidence differed regarding the crime scene. Sixthly, that the charged offence was not proven because of, among other factors, the following: (a) the date on which the incident was reported to the police was uncertain; (b) the prosecution's case was weak, contradictory, unbelievable, and unreliable; (c) the absence of DNA evidence; and (d) the absence of a material witness. Seventh, the appellant's defence was not adequately evaluated by the lower courts. Lastly, the appellant was sentenced by the trial magistrate in violation of section 170 of the CPA. The appellant, who was self-represented, prayed that we allow the appeal based on the grounds of appeal as he outlined in his written argument. Conversely, the appeal was vigorously opposed by Ms. Chema Maswi, the learned Senior State Attorney. We begin our deliberations with the first ground of appeal. On this issue, the appellant faults the lower courts for failing to deal with the prosecution's tardiness in presenting him for arraignment. His contention is that, despite his arrest on 23rd January, 2019, he was not arraigned before the trial court until 8th March, 2019. He maintains that the delay in arraignment not only contravened section 32 (1) of the CPA but also violated the principles of fair hearing. He further contends that the delay denied him the right to be heard for an extended period, as stipulated in Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977, Cap. 2. He cites Mfaume s/o Daudi Mpoto & 2 Others v. Republic [2023] TZCA 17568 [31st August, 2023; TanzLII] for the proposition that an unexplained protracted delay in arraignment of a suspect is a violation of his right to a fair hearing, which vitiates the ensuing trial. Ms. Maswi acknowledges that the appellant was in police detention on 23rd January, 2019, and that he was arraigned on 8th March, 2019, as indicated on page 1 of the record of appeal. However, she argues that the delay would not invalidate the trial considering the curative provisions of section 388 of the CPA. She bases her submission on Daktari Jumanne v. Republic, Criminal Appeal No. 602 of 2021 [2023] TZCA 18020 [28th December, 2023; TanzLII]. Section 32 (1) of the CPA alleged to have been violated in the instant case provides thus: 5 "32.-(l) When any person has been taken into custody without a warrant for an offence other than an offence punishable with death, the officer in charge o f the police station to which he is brought may, in any case, and shaii if it does not appear practicable to bring him before an appropriate court within twenty four hours after he was so taken into custody, inquire into the case and, unless the offence appears to that officer to be of a serious nature, release the person on his executing a bond with or without sureties, for a reasonable amount to appear before a court at a time and place to be named in the bond; but where he is retained in custody he shall be brought before a court as soon as practicable. "[Emphasis added] The above provision is plain in its natural and ordinary meaning, as it pertains to situations in which an individual is detained by the police without a warrant for an offence that is not punishable by death (i.e., offences other than murder and treason). Secondly, the officer in command of the police station to which the suspect is brought must release the individual on bond if it is not feasible to bring him to court within twenty-four hours, unless the offence is of a serious nature in his opinion. Thirdly, it is crucial for the officer to investigate the case prior to utilising his or her discretion to grant the suspect police bail. Fourthly, it appears to us that the suspect may be detained in police detention when the offence is of a serious nature, but he must be produced in a court of law "as soon as practicable. "Lastly, the officer is granted the authority to release the suspect if, in his judgment, there is insufficient information to file a criminal charge after conducting a thorough investigation. Even though section 32 (1) of the CPA establishes an ideal or imperative that any suspect arrested in connection with an offence falling under that provision must be brought to court within twenty-four hours of their arrest, it does not always follow that failure to do so constitutes an unlawful act - see, for example, in Jafari Salum @ Kikoti v. Republic, Criminal Appeal No. 370 of 2017 [2020] TZCA 221 [13th May, 2020; TanzLII] and Shabani Salim v. Republic, Criminal Appeal No. 519 2021 [2023] TZCA 18015 [21st December, 2023; TanzLII]. To ascertain whether the police behaved in a manner that was unwarrantedly disrespectful of the law, the relevant court must evaluate the facts of the case. We are cognisant that the overarching objective of section 32 (1) of the CPA is to prevent the unjustified protracted detention of a suspect in a police cell without trial. In this regard, the Court noted in Mfaume s/o Daudi Mpoto {supra) that: 7 "A cautious reading o f section 32 (1), (2) and (3) o f the CPA makes it dear that the officer in charge o f the police station to which a suspect is brought, can direct for a remand only when there are grounds to believe that the accusation or charge is well founded and it appears that the investigation cannot be completed within the period o f twenty-four hours as specified in that section." In the above case, the Court underscored the significance of the suspect's prompt arraignment in court as a fundamental principle of trial fairness. In the present case, it is acknowledged that the appellant was apprehended on 23rd January, 2019, but was arraigned on 8th March, 2019, which was forty-four days after his arrest. However, there is no evidence on record to indicate whether the appellant was in police confinement during that time. It is possible, at least in theory, that he may have been released on police bail given that he was charged with a bailable offence. Regrettably, the appellant failed to bring the matter to the trial court's attention for it to ascertain whether he was incarcerated in police custody for an extended period and, if so, whether the detention was unjustified and unlawful. Nor did he present the matter to the High Court during the first appeal. It is important to remember our observation in Jafari Salum @ Kikoti {supra), which we cited in Daktari Jumanne {supra), thus: "The appellant claims this to have offended the mandatoryprovisions o fsection 32 (1) o f the CPA. indeed, as Ms. Ally submitted, the evidence is silent as to what made the appellant be arraigned after about 39 days after he was arrested. This is perhaps why Ms. Ally went into speculation that the delay might have been caused by the appellant's endeavours to have the matter settled out o f court. Much as we do not find ourselves safe to go into speculation, as Ms. Ally did, we do not think this procedural mishap was fata! as to vitiate the trial o f the appellant." The instant case is incomparable to Mfaume s/o Daudi Mpoto {supra) due to the absence of evidence regarding the appellant's purported prolonged incarceration. The latter was decided in the context of the suspect's arraignment in court on 2nd November, 2016, following a five-month delay. We are aware that the charge the suspect in that case was facing was the non-bailable offence of armed robbery contrary to section 287A of the Penal Code, Cap. 16 ("the Code"). So, there was no dispute that he was in police custody during that time. Consequently, we find no merit in the first ground of appeal. 9 The contention in the second ground is two-fold: first, that the trial court flouted the applicable procedure during ascertainment of the facts of the case not in dispute. And, secondly, that the court did not read over to the parties such undisputed matters before the memorandum of the said facts was signed. Ms. Maswi satisfactorily addressed these grievances. Firstly, we concur with her assertion that the trial court adhered to the letter and spirit of section 192 (2) and (3) of the CPA as evidenced by the record on pages 7 and 8. The trial court's primary objective was to ascertain the agreed facts following the reading of the case's facts. The appellant's personal particulars and the manner of his arrest on 24th January, 2019, were the only undisputed facts that the parties agreed upon at the conclusion of the process. The other critical aspects of the case were still under dispute. Secondly, we maintain that the defect in question would not be fatal in light of the circumstances of this case, even if it were assumed that the procedure was not duly applied. This conclusion is based on the Director of Public Prosecutions v. Lengai Ole Sabaya & Others, Criminal Appeal No. 231 of 2022 [2023] TZCA 17853 [17th November, 2023; TanzLII], in which we reviewed several decisions of the Court on the subject. Certainly, in Lengai Ole Sabaya {supra), we reiterated that the ensuing trial is not necessarily tainted by the failure to conduct a preliminary hearing or irregularities in its conduct. In the present instance, it is noteworthy that the appellant's conviction was not predicated on any of the facts that were included in the memorandum of undisputed matters. The appellant's complaint is entirely misguided on this basis. We now address the third ground of appeal, which posits that PW2's testimony was received at the trial in violation of section 127(2) of the Evidence Act. The appellant contends that PW2, a child witness of tender years, provided evidence on an incomplete promise to tell the truth without being asked any preliminary questions regarding his capacity to testify. He moves us to declare his evidence invalid, citing Hamidu Yunusu v. Republic, Criminal Appeal 293 of 2019 [2022] TZCA 673 [4th November, 2022; TanzLII]. Ms. Maswi counters that the testimony was appropriately received after the court obtained a promise from the witness to disclose the truth. She bases her submission on Sixmund Angelus Masoud v. Republic, Criminal Appeal No. 85 of 2021 [2023] TZCA 17601 [5th September, 2023; TanzLII]. Additionally, she argues that, in contrast to Hamidu Yunusu {supra), where the child witness did not make any commitment to disclose the truth, the witness testified in this instance after promising to do so. n There is no doubt that PW2, a seven-year-old boy, was a child of tender age in accordance with section 127 (4) of the Evidence Act, as his apparent age was not greater than fourteen years. Consequently, his testimony should have been received in accordance with section 127 (2) of the Evidence Act, which stipulates the following: n(2) A child o f tender age may give evidence without taking an oath or making an affirmation but shah\ before giving evidence, promise to tell the truth to the court and not to tell any lies." It is essential to remember that in Issa Salum Nambaluka v. Republic, Criminal Appeal No. 272 of 2018 [2020] TZCA 10 [21st February, 2020; TanzLII], we interpreted the above provision to the effect that it allows a child of tender age to give evidence on oath or affirmation or to testify without oath or affirmation, provided that he or she promises to tell the truth, not lies. The learned trial magistrate clearly indicated on page 15 of the record of appeal, after recording PW2's personal particulars, that he (PW2) had stated, 7 promise to tell the truth." The learned trial magistrate subsequently began receiving PW2's testimony. We believe that this approach was consistent with the law, as indicated in our numerous decisions, such as Issa Salum Nambaluka {supra) and 12 Kastuli Charles @ Akoonay v. Republic, Criminal Appeal No. 414 of 2020 [2023] TZCA 17659 [26th September, 2023; TanzLII]. In the latter instance, we appropriately maintained that: ".. since from the record, PW4 promised to te/i the truth and not lies thus having complied with the provisions o f s. 127 (2) o f the Evidence Act, the fact that the trial court did not ask her questions to determine the manner in which she would give evidence does not have any effect as regards the validity of her evidence." [Emphasis added] The third ground of appeal too fails. In the fourth ground of appeal, the appellant contends that he was denied the opportunity to present two witnesses to bolster his defence. Initially, we concur with his assertion that, in response to the trial court's inquiry regarding his rights under section 231 of the CPA on 26th August, 2019, he replied that he intended to present Irene Bura and Joseph Isaya as his defence witnesses. During the defence hearing on 9th September, 2019, he was the sole witness to present evidence in support of his case; however, his witnesses were not present. His witnesses were once again absent at the subsequent scheduled hearing on 23rd September, 2019. Summonses were issued by the trial court at his request, requiring the 13 witnesses to appear. The witnesses were absent on both the 7th and 8th of October, 2019, when the case came up for further defence hearing. It appears that the appellant was no longer patient, as he was recorded to have moved the trial court on the latter day as follows: '7 pray to dose my defence as my intended witness has failed to appear despite summons." Acceding to the appellant's prayer, the trial court duly closed the defence case and set forth the case for judgment. The judgment was ultimately rendered on 26th November, 2019. The appellant's protestation that he was denied the opportunity to present his two witnesses is quite inexplicable in light of these facts. We decline to accept it. The fifth ground of appeal is the complaint that the charge and the evidence differed regarding the crime site. On this, the appellant is adamant that the crime scene was reported as Mayoka village by PW2 and PW3, even though the charge lists Moyamayoka village as the location of the crime. Consequently, he urges us to determine that the variance is fatal to the prosecution case, primarily because the charge was not amended to align with the evidence on record. He cites Godfrey Simon & Another v. Republic, Criminal Appeal No. 296 of 2018 [2022] TZCA 8 [11th February, 2022; TanzLII] to substantiate his argument that the 14 failure to amend or perfect a charge in accordance with section 234 (1) of the CPA is catastrophic. We concur with Ms. Maswi that the disparity in question regarding the crime scene was innocuous, even though a charge may need to be amended in accordance with section 234 (1) of the CPA to rectify a material variance between it and the evidence on record. It is only logical to concur with the learnt Senior State Attorney that the citation of Moyamayoka village on the charge sheet was an inoffensive typographical error that was not prejudicial to the appellant, given the evidence provided by PW2 and PW3, which indicates that the offence was committed in Mayoka village, which the appellant also identified as his place of residence at the relevant time. This citation must have informed him that the crime site in question was in Mayoka village. The fifth complaint is similarly dismissed. We suggest that the sixth and seventh grounds of appeal be addressed concurrently. To begin with, we emphasise that the offence the appellant faced, as outlined in section 154 (1) (a) of the Code, could only be proven against him if the prosecution could demonstrate that the complainant was 15 carnally known against the order of nature and that the appellant was the perpetrator of that act. The complainant's evidence indicates that on 23rd January, 2019, the appellant dragged him into a nearby shrubbery, stripped him, and sodomised him while he was on an errand. In response to the complainant's frantic cries, PW4 rushed to the site of the crime. He claimed that he observed the appellant in the act of sodomising the complainant. Thus, PW4's evidence confirmed the complainant's tale. Further confirmation was provided by the complainant's mother (PW3), who, upon being apprised of the incident by PW4 after he had brought her son to her, examined her son's anus. She observed bruises around the anal area and what she suspected to be fresh seminal fluid. Significantly, her observation was consistent with the findings of the Assistant Medical Officer (PW5), which were disclosed in exhibit PI. PW5 discovered that the complainant's anus was injured and contained spermatozoa. The testimonies of the complainant, PW3, PW4, and PW5 were crucially accepted by the courts below. The appellant lamented that the date on which the alleged incident was reported to the police was ambiguous. The complaint lacks substance. The incident was initially reported to the village office on the 16 afternoon of 23rd January, 2019, as indicated by the complainant, PW3, and PW4. That is why the appellant was already apprehended and incarcerated in a police cell the following day, while the complainant was being attended to at the health centre by PW5. The appellant also criticised the prosecution witnesses, arguing that their narrative was unreliable, implausible, and contradictory. Unfortunately, this claim is an unsubstantiated, generalised criticism. It is a well-established principle of law that every witness is entitled to credibility; that is, their testimony must be accepted and believed unless there is a compelling reason not to do so (Goodluck Kyando v. Republic [2006] T.L.R. 363). A testimony may be discredited if it is manifestly improbable or implausible, or if it is replete with material inconsistencies - see Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004 [2007] TZCA 16 [16th March, 2007; TanzUI]. The testimonies of the complainant, PW3, PW4, and PW5 were unshaken by the appellant's cross-examination, and we believe that they are devoid of any material contradiction. Additionally, the appellant raised concerns regarding the prosecution's lack of DNA evidence to substantiate their case. DNA evidence is not a legal requirement or a practice in our jurisdiction to 17 prove a sexual offence, as Ms. Maswi correctly argued - see, for example, Robert Andondile Komba v. Republic, Criminal Appeal No. 465 of 2017 (unreported). We certainly do not diminish the importance and weight of DNA evidence as evidence in criminal cases. Nevertheless, in this case, the appellant was captured red-handed, and the evidence was so overwhelming that such DNA evidence was not necessary. In the same vein, the assertion that the Village Executive Officer, Sophia, was a material witness who should have been summoned as a prosecution witness is without merit. We want to emphasise that the evidence presented in support of the allegation against the appellant was overwhelming. The said Sophia was not an eyewitness to the crime. She only became embroiled in the matter after it was reported to her at the village office. Consequently, she was not an essential witness for the prosecution. We now address the claim that the appellant's defence was not adequately evaluated by the lower courts. On this complaint, Ms. Maswi acknowledges that the appellant's testimony in defence was not considered by the trial court. However, she quickly asserts that the High Court stepped in by evaluating the defence and rejecting it. 18 After reviewing the record, we concur with Ms. Maswi's submission. Even though the appellant's claim that the case against him was fabricated by the complainant's mother (PW3), with whom he had engaged in a dispute regarding ownership of an undisclosed landed property, was initially ignored by the trial court, it was considered by the High Court. The High Court correctly rejected that defence, as it concluded that the appellant failed to cross-examine PW3 on it. It is appropriate to reiterate the normative standpoint that the omission or neglect to challenge the evidence-in-chief of a witness on a material or essential point through cross-examination would imply an acceptance of that evidence as truthful, subject to its being challenged as inherently implausible or probably untrue - see, for example, Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010 [2012] TZCA 103 [21st May 2012; TanzLII]. Consequently, we regard the appellant's defence as an afterthought. Ultimately, we are satisfied that the appellant was properly convicted of an unnatural offence under section 154 (1) (a) of the Code, as the evidence overwhelmingly indicates that he caused his manhood to penetrate the anus of the seven-year-old complainant. 19 We are not required to travel a significant distance to address the grievance in the eighth ground, which we believe is also manifestly flawed. It is well-established that the sentencing jurisdiction of a subordinate court is generally regulated by section 170 of the CPA, which limits it to specific conditions that are beyond the scope of this discussion. Nevertheless, the bottom-line is that this provision is not applicable in cases where the law that established the charged offence specifies a mandatory penalty. In the present instance, section 154 of the Code, which we will extract in its entirety below, is an example of a stipulation that specifies a mandatory life sentence under subsection (2). "154. -(1) Any person who- (a) has carnal knowledge o f any person against the order o f nature; or (b) to (c) [Not applicable] commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term o f not less than thirty years. (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] We have no doubt that the mandatory life imprisonment imposed on the appellant was well-deserved, given the demonstrated fact that the complainant was seven years old when the appellant sexually molested him. As well, the final ground of appeal is unsuccessful. Ultimately, we dismiss the appeal due to its lack of substance. DATED at ARUSHA this 12th day of August, 2024. G. A. M. NDIKA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 13th day of August, 2024 in the presence of the Appellant in person, and Mr. Godfrey Nugu, learned State Attorney for the Respondent, is hereby certified as a true copy of the original. 21