RAZAKI SADIKI ASAD VERSUS REPUBLIC JUDGMENT

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA CRIMINAL APPEAL NO 4012/2024 (Arising from Criminal Case No. 30 of 2024 before the District Court of Kondoa) RAZAKI SADIKI ASADI ………………..……………..APPELLANT VERSUS REPUBLIC ……………………………………….………RESPONDENT JUDGMENT Date of last order: 24/07/2024 Date of the Judgment: 31/07/2024 LONGOPA, J.: The appellant was an accused person before the District Court of Kondoa where he stood charged with one count of unnatural offence contrary to section 154(1) (a) and (2) of the Penal Code [Cap 16 R.E 2022]. It was alleged that on 4th day of October, 2023 at Keikei village within Kondoa district in Dodoma Region the appellant did have carnal knowledge of a victim boy of 3 years old against the order of nature. 1|Page The prosecution side did call a total of five witnesses to establish its case while the appellant called a total of three witnesses. The trial court convicted the appellant and sentence him to serve life imprisonment. It is that conviction and sentence that aggrieved the appellant thus this appeal on the following grounds, namely: 1. That, the trial Magistrate erred both in law and facts in convicting the appellant on relying the evidence that having discrepancies as PWI testified before the trial court that it was on 3rd October, 2023 when the appellant did carnal knowledge the victim whilst as per page 2 at the paragraph 1 of the copy of judgment was claimed the same offence, the appellant committed on 4th October, 2023. That such testimonial renders on prosecution side failure to comply with a burden to prove the case beyond reasonable doubt as required by the law and also as it was then stated in the case of Woodmington V.DPP (1935) AC. 462 that "it is the duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. This is the universal standard in criminal trials and the duty should never be shifted to the accused" 2. That, trial Magistrate erred in law and facts by convicting and subsequently sentencing the appellant basing' on extra-judicial confession and an Exhibit 3 as per page 7 of 2|Page the copy of judgment without considering that the appellant is unsound Mind whereas the trial ought to order inquiry into insanity as required by the law. 3. That the trial Magistrate erred in law and in facts on admitting and convicting the appellant basing on the testimonial adduced by PW4 whom alleged to have the age of 3 years without taking precaution that such child does not understand the nature of oath whereas before giving evidence he should be required to tell the truth and not to tell lies. 4. That, the trial Magistrate erred in law and facts in holding a caution statement tendered by PW5 that is unprocedural as none of the appellant's relative was summoned as a witness in the course administering the said caution statement as per section 10(3) of the Criminal Procedure Act, Cap. 20 R.E 2022. On 24th July 2024, the parties appeared before me for oral submission. The appellant appeared in person to fend for himself, and the respondent was represented by the Ms. Victoria Njau, learned State Attorney. When raised on the appellant prayed to adopt all the grounds of appeal be adopted to form part of his submission in this Court. He shortly 3|Page stated that the conviction and sentence against him was not proper as it was a fabrication and he asserted to be not well mentally. It was his argument that he has never been interrogated at the Police station by police officers thus the no Cautioned Statement was made. He reiterated that he was sent to the Village Executive Officer/Ward Executive Officer but he did not admit anything regarding the alleged offence. The appellant informed this court that the VEO/WEO gave evidence in the trial court but the appellant did not cross examine the witness as the VEO/WEO had stated that he does not know appellant. At this juncture, he prayed that this Court be pleased to allow the appeal, set aside the conviction and sentence. On the other hand, the respondent was of the view that all four preferred grounds of appeal lacked merits thus prayed for dismissal of the appeal for lack of merits. It was respondent’s view the appellant should continue serving the sentence as entered by the trial court. On the first ground related to discrepancies of dates especially PW 1 that the incident happened on 03/10/2023, it was submitted that it is not valid ground. It was argued that despite PW 1 having stated that the victim informed that offence happened on 03/10/2023, actually the offence happened on 04/10/2023 as categorically stated in the charge. The issue 4|Page of the date is very minor that it does not go to the root of the offence that the appellant stood charged. The discrepancies do not lead to the conclusion that the appellant is the one who committed the offence. This minor discrepancy cannot impeach strong evidence of the prosecution that was adduced/ tendered during the hearing of the case against the appellant. The respondent cited the case of Issa Hamis Uki versus Republic, Criminal Appeal No 129 of 2017, where the Court of Appeal of Tanzania at page 18 stated that minor contradiction does not affect the case of the prosecution. With regard to second ground based on insanity question that was intimated with view of impeaching the extra judicial and cautioned statements, it was submitted that it is a clear afterthought as the appellant did not demonstrate that there were elements of insanity. In the defence evidence, the appellant never stated anything on insanity as neither of defence witnesses stated anything on possibility of insanity on the appellant. It is incorrect to raise a matter that was not determined in the trial court. We pray that this reason/ground of appeal be dismissed for lack of merits. On the third ground regarding the evidence of PW 4 who did not promise to tell the truth and not lies, it was submitted that it is correct that 5|Page PW 4 was a child of tender age and as revealed on pages 10-11 of the proceedings, PW 4 did not testify except the identification of the appellant. The Court was satisfied that PW 4 could not express himself thus did not testify. There are decisions of the Court that state categorically that the Court may convict the accused person eventhough the victim has not testified before the Court. In the case of Issa Ramadhani versus Republic, Criminal Appeal No. 409 of 2015, Court of Appeal of Tanzania at Dodoma at pages 4-5 addressed the same. The appellant was not convicted as a result of the evidence of PW 4 except that there was strong evidence from other witnesses and the documentary evidence in form of extrajudicial and cautioned statements of the appellant that admitted to have committed the offence. The extrajudicial and cautioned statements were not challenged by the appellant. It was reiterated that the appellant opted not to cross examine with regard to oral evidence and exhibits tendered by those witnesses. The last ground regarding the cautioned statement being in contravention of the law for failure to call a relative or lawyer of the appellant choice, it was submitted that such allegations are not true. According to the respondent, PW 5 explicitly stated that prior to recording of the cautioned statement of the appellant, he availed the rights of the 6|Page accused person including the right to call a witness in form of a relative or the lawyer of choice but it was the appellant’s choice that he was ready to proceed without assistance of any other person. Further, PW 5 tendered the cautioned statement as exhibit which was not objected by the appellant as it appears on page 12 of the proceedings of the case that are typed. Furthermore, the appellant was afforded sufficient opportunity to cross examine PW 5 but he did not question anything. This is evidence that appellant admitted all the contents of PW 5's evidence. It was argued that the cited case of Issa Hassan Uki versus Republic is illustrative as the Court emphasized that failure to cross examine is an admission on the truthfulness of the unchallenged evidence. As a result, the learned State Attorney was of the settled view that the prosecution managed to prove/establish the case against the appellant beyond all reasonable doubts. Thus, the respondent prayed that this appeal be dismissed and the conviction and sentence of the trial court be upheld so that the appellant can continue the remaining term of the sentence. In brief rejoinder, the appellant reiterated that he does not agree with all that the respondent's state attorney submitted. The appellant pleaded with this court to quash the conviction and set aside sentence imposed against him, as a result set him free as the conviction and sentence were illegal and wrongly arrived at. 7|Page I have dispassionately considered the rival arguments of the parties on this appeal to determine validity or otherwise in this appeal. It is my considered opinion that all these grounds can be addressed in limbs by combining some of them in major themes. The burden and standard of proof for criminal cases is on the prosecution and the standard of proof is beyond reasonable doubt. This was illustrated in the case of Matibya N g'habi vs Republic (Criminal Appeal No. 651 of 2021) [2024] TZCA 34 (14 February 2024) (TANZLII), at page 8, the Court of Appeal stated that: At the outset, it is instructive to state that, this being a criminal case, the burden lies on the prosecution to establish the guilt of appellant beyond reasonable doubt. In Woodmington v. DPP [1935] AC 462, it was held inter alia that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. The term beyond reasonable doubt is not statutorily defined but case laws have defined it. For instance, in the case of Magendo Paul & Another v. Republic [1993] T.L.R. 219 the Court held that: “For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a 8|Page remote possibility in his favour which can easily be dismissed.” It is noteworthy that, the duty and standard of the prosecution to prove the case beyond reasonable doubt is universal in all criminal trials and the duty never shifts to the accused. It is lucid that the criteria on the proof beyond reasonable doubt is that evidence of the prosecution should be very strong to point to one direction that actually the accused did commit the offence and not any other person. There should no possibilities that someone else might have committed the offence. In Republic versus Rashid Abdalah Njumwaki & 2 others (Criminal session case 157 of 2020) [2024] TZHC 789 (13 March 2024) (TANZLII), at page 6, the Court (Hon. Ngunyale, J.) stated that: What amounts to proof beyond reasonable doubt was well discussed in the case of Samson Matiga Vs. R, Criminal Appeal No. 205 of 2007 where the Court of Appeal held: “A prosecution case, as the law provides, must be proved beyond reasonable doubt. What this means, to put it simply, is that the prosecution evidence must be so strong as to leave no doubt to the criminal liability of an accused person. Such evidence must irresistibly point to the 9|Page accused person, and not any other, as the one who committed the offence.” That being the case, where there are reasonable doubts on the prosecution evidence then such evidence is interpreted in favour of the accused person. This is in accordance with the principle in Syridion Michael vs Republic (Criminal Appeal No. 262 of 2022) [2024] TZCA 365 (15 May 2024) (TANZLII), at page 23, the Court of Appeal reiterated that: Settled, are the principles that reasonable doubts in the prosecution case should be resolved to the benefit of an accused person and also that it is the duty of the prosecution to prove the case against the accused beyond reasonable doubt. The importance for the prosecution to prove the case against an accused person beyond reasonable doubts cannot be overemphasized. For the offence of unnatural offence under section 154(1)(a) and (2) of the Penal Code, Cap 16 R.E. 2022, there must be evidence to establish the following aspects. First, there was penetration of another person’s anus. Second, it is the appellant who penetrated the victim. Third, the victim was below eighteen (18) years. 10 | P a g e It is on record that PW 1 who is victim’s mother testified that the victim informed her about the ordeal in the following words: “Mama tusimpende mjomba, alichukua kadudu kake ka kukojolea akaniwekea matakoni” which literary meant that they should keep distance with the accused as he was not a good person, he took his penis and put it into the victim's anus. It means that victim’s mother was testifying to the effect that victim was penetrated against the order of nature. It is so interpreted as per guidance of the Court in the case of Hassan Kamunyu vs Republic (Criminal Appeal 277 of 2016) [2018] TZCA 259 (25 July 2018), at pages 13-14, where the Court of Appeal reiterated that penetration may be described using different words depending on the cultural background, upbringing, religious feelings, the audience listening, and the age of the person giving the evidence. Thus, the Court stated that: Thus, words like "[he] removed my underwear and started intercoursing me" in Matendele Nchanga @ Awilo (supra), "sexual intercourse" or "have sex" in Hassan Bakari @ Mamajicho (supra), "[he] undressed me and started to have sex with me" in Nkanga Daudi Nkanga (supra), "kanifanyia tabia mbaya" in Athumani Hassan (supra), "alinifanya matusi" in Jumanne Shabani Mrondo (supra) or "he put his dudu in my vagina" in Simon Erro 11 | P a g e (supra) or "did sex me by force", "this accused raped me without my consent", "While this accused was sexing me I alarmed" and "fortunately one B s/o T came to my home and he found this accused still sexing" in Baha Dagari (supra) were, though not explicitly described, taken by the court to make reference to penetration of the penis of the accused person into the vagina of the victim. The evidence of PW 1 was corroborated. PW 2, who is a medical doctor testified to the effect that after examination of the victim he found that anus of the victim had bruises and widened. It was concluded that there were positive signs of penetration of the anus. This was cemented by Exhibit P.1 which was PF 3. Also, PW 3 Ward Executive Officer of Keikei Ward stated on 4th October 2024 he recorded an extrajudicial statement of the appellant. According to PW 3, the accused person (the appellant) admitted to have penetrated the victim against order of nature only once. Exhibit P.2 was tendered, admitted and its contents were read over in Court. Exhibit P.2 reveals that: siku hiyo nilimlawiti mtoto aitwaye WMR (names withheld) siku hiyo ilikuwa asubuhi. “ Furthermore, PW 5 cemented he interrogated appellant and tendered Exhibit P. 3 that is a cautioned statement. According to PW 5, the appellant 12 | P a g e admitted to have committed the offence against order of nature to the victim child. Totality of evidence of PW 1, PW 2, PW 3 and PW 5 is lucid that the victim child was penetrated in its anus and it the appellant who did so. Thus, two of crucial elements of the offence under Section 154(1)(a) and (2) of the Penal Code, Cap 16 R.E. 2022. In respect of age of the victim child, it is settled that it must be established if the offence falls within statutory rape and unnatural offence under Section 154(1)(a) and (2) of the Penal Code. In the case of Jafari Juma vs Republic (Criminal Appeal 252 of 2019) [2023] TZCA 216 (3 May 2023), the Court of Appeal of Tanzania stated that: It is a peremptory principle of law that in statutory rape cases like the one before us, the age of the victim must be proved. Mr. Mtoi, referred us, to the case of Leonard Sakata (supra) where the Court underlined in imperative terms that in cases of statutory rape, age is an important ingredient of the offence which must be proved. There is in this regard an array of authorities to support this settled position of the law, see for example Rwekaza Bernado v. Republic, Criminal Appeal No. 477 of 2016, Mwami Ngura v. Republic, Criminal Appeal No. 63 of 2014 and 13 | P a g e Solomon Mazala v. Republic, Criminal Appeal No. 136 of 2012 (all unreported). It was evidence of PW 1 that the victim was born on 15/08/2020 thus was three (3) years old. Also, Exhibit P. 1 reveals that estimated age of the victim is 3 years. This evidence is sufficient enough to establish that the victim’s age is below 18 years old. As such the principle in the case of Hassan Bundala @ Swaga vs The Republic (Criminal Appeal 386 of 2015) [2015] TZCA 261 (23 February 2015) (TANZLII), at page 4 where the Court of Appeal observed that: Not only was the age of the victim mentioned in the charge sheet but the medical evidence through PW6 and the PF3, exhibit PE1 showed that the victim was aged 8 years when she was raped. The appellant did not challenge this evidence then and he can't be heard at this stage to say that the age of the victim was not proved. As there was proof of age from the testimony of PW 1 who is the biological mother of the victim and Exhibit P.1, the PF 3 thus the question relating to the age is affirmatively resolved that victim is underage. Thus, all the ingredients necessary for the unnatural offence under section 154(1)(a) and (2) of the Penal Code was established beyond reasonable doubts. 14 | P a g e Essentially, the defence evidence did not raise any meaning doubts on the watertight evidence of the prosecution. Save for the PW 4 who did not manage to adduce evidence as it shall demonstrated at a later stage, evidence of PW 1, PW 2, PW 3 and PW 5 was sufficient to convict the appellant without leaving any possibility of reasonable doubts. Thus, the first ground of appeal crumbles for being devoid of merits. The next issue is reliance of the trial court in extrajudicial and confession statements without considering insanity of the appellant. I have perused thoroughly the proceedings of the trial court and contents of the extra judicial statement and cautioned statements which form Exhibit P.2 and Exhibit P 3 of the evidence of the prosecution. In the two statements, the following aspects can be noted: first, both were tendered and admitted in Court by persons who prepared the statements. Second, the appellant did not object tendering of either of the two statements. Third, the statements were read out in court upon admission. Fourth, the statements have incriminating admission by the appellant to have committed the offence. It is my humble view that both statements are well within the ambits of the law in terms of admissibility of documentary evidence. The law is settled that any documentary or exhibits must undergo three processes in tendering them. In the case of Robinson Mwanjisi and Three Others vs. R. [2003] T.L.R. 218, at 226, the Court of Appeal stated that: 15 | P a g e Whenever it is intended to introduce any document in evidence, it should first be cleared for admission, and be actually admitted, before it can be read out. All these stages were categorically adhered to as PW 3 and PW 5 stated that there were statements made by the appellant and they are able to recognize the same through their respective hand writing, signature and the accused person thumbnail. The accused person was availed opportunity to challenge admission of each of the two documents but responded that he had no objection. Also, upon admission both documents were read over in court. Proceedings reveal all these in pages 8-9 and 11- 12 respectively. On contents of the Statements, Exhibit P2 reveals that the appellant stated, among others, that:” siku hiyo nilimlawiti mtoto aitwaye WMR (names withheld) siku hiyo ilikuwa asubuhi” that can be literally translated to mean that on material date in the morning I had carnal knowledge of the victim child against the order of nature. Similarly, Exhibit P3 states that “mnamo tarehe 04/10/2023 majira ya 0800hours ndipo mtoto W alikuja kuangalia video kisha nilimchukua na kumvua kaptura aliyokuwa amevaa na kumwinamisha kisha nikatoa uume wangu na kuingiza katika sehemu yake ya haja kubwa kisha nilimlawiti na 16 | P a g e ndipo alilia na kumwambia asimwambie mtu yeyote.” Indeed, literally translated meant that simply the appellant narrated how he effected the commission of the unnatural offence against the victim through undressing the victim and penetrating the boy vide the boy’s anus. The contents of the two exhibits, namely Exhibit P.2 and Exhibit P3 reveal lucid admission from the appellant to have committed the alleged offence. The two exhibits tally in terms admitting to the ingredients of the offence on one hand and timing of the commission of the offence. Such admission is well within the principle reiterated in the case of Menroof January Haule vs Republic (Criminal Appeal No. 121 of 2022) [2024] TZCA 69 (20 February 2024) (TANZLII), at pages 18-19, where the Court of Appeal stated that: It is our considered view, and as rightly found by the learned trial Judge that, all these facts provide overwhelming evidence of the appellant's participation in the commission of the offence. In the circumstances and taking into account that the appellant did not challenge the admissibility of the said statements during the trial, we agree with Ms. Mgimba that challenging them at this stage of an appeal, is nothing but an afterthought. In the case of Mohamed Haruna Mtupeni and Another v. Republic, Criminal Appeal No. 259 of 2007 [2010] TZCA 141: [4 June 17 | P a g e 2010: TanzLII], the Court stated that: “The very best of the witnesses in any criminal trial is an accused person who freely confesses his guilt.” Similarly, in the instant appeal, it is our settled view that, what is contained in the appellant's statements is the best evidence, we can have on what transpired on that fateful night. Thus, the Exhibits P.2 and P 3 are crucial part of the prosecution’s testimonies to establish the guilty of the appellant. However, the challenge by the appellant is that he was not sane as he was of unsound mind thus the trial court ought to have considered the unsoundness of mind of the appellant through insanity proceedings as required by the law. For insanity to apply in the proceedings, the Criminal Procedure Act, Cap 20 R.E. 2022 is illustrative that such issues may relate to two main stages. First, it is insanity of the accused at the time of commission of alleged offence thus he was incapable of understanding the nature of his action or omission. Second, it is when the accused person is arraigned before the court of law and during trial the accused is incapable of making defence. The guide is found in the case of MT. 81071 PTE Yusuph Haji @ Hussein vs Republic (Criminal Appeal No. 168 of 2015) [2016] TZCA 229 (19 April 2016) (TANZLII), at pages 8-9, where the Court of Appeal stated that: 18 | P a g e To begin with, we wish to preface our consideration with an observation that there is a marked distinction between unfitness to make a defence due to insanity and the plea of insanity as a defence to a charge or information. Sections 216 to 218 of the Act, lay down the procedure to be followed where an accused person is suspected to be incapable of making his defence. In such situations, the issue is as to the unfitness of an accused person to plead and to take his trial and, thus, the unsoundness of mind must relate to the time of the trial and the inquiry must be in relation to an accused's mental condition at the time of the trial as distinct from his mental condition at the time of the commission of the alleged offence. Conversely, where it is desired to plead insanity as a defence, the issue, would be as to the state of mind of the accused at the time of the commission of the alleged act. Such defence is governed by the provisions of section 219 and 220 of the Act. From the record of proceedings of the court below, it is beyond question that the appellant desired to make a plea of insanity as a defence to the charge. In the first instance, the presiding Judge correctly, in our view, predicted the order for the appellant's 19 | P a g e detention at a mental hospital under the provisions of section 220. As a matter of principle, it was expected that if insanity question was raised then the same would have been dealt with under these provisions. My perusal of the proceedings reveals that at no point in time, from 03rd November 2023 when the appellant was arraigned in Court through 29th December 2023 when the judgement was delivered thus conviction of the accused person (appellant), did anyone raise any aspect related to insanity. Neither the defence evidence had any iota of insinuation of insanity of the appellant. As the question of insanity was not raised nor dealt with in the trial, I concur with the respondent’s submission that it is an afterthought to raise the same at this stage. This court being first appellate court is not seized with evidence on record to determine insanity issue in the circumstances of the matter. The Court of Appeal provided a guidance in the case of Hassan Bundala @ Swaga vs The Republic (Criminal Appeal No. 386 of 2015) [2015] TZCA 261 (23 February 2015) (TANZLII), at pages 3-4, where it stated that: First of all, he pointed out that the first and third grounds were not raised in the first appellate court and have been 20 | P a g e raised for the first time before us. We agree with him that the grounds must have been an afterthought. Indeed, as argued by the learned Principal State Attorney, if the High Court did not deal with those grounds for reason of failure by appellant to raise them there, how will this Court determine where the High Court went wrong? It is now settled that as a matter of general principle this Court will only look into matters which came up in the lower court and were decided; not on matters which were not raised nor decided by neither the trial court nor the High Court on appeal (Emphasis supplied). I can with certainty find that second ground of appeal is devoid of merits as I have demonstrated that the question of insanity is only raised on the grounds of appeal. It has never been raised nor determined by the trial court thus this Court being an appellate court on this matter is precluded from entertaining the same. On third ground of appeal relating to conviction of the appellant based on evidence of PW 4 without taking precaution that it was without oath/affirmation, it is settled view of this court that the ground lacks merits. 21 | P a g e The evidence of PW 4 is evidence of the child of tender age as per records, PW 4 was aged 3 years old when he was rallied to court to testify. On pages 10-11, there is a brief enquiry on PW 4 to establish whether he understands the nature of oath or otherwise. In the case of Godfrey Wilson vs Republic (Criminal Appeal 168 of 2018) [2019] TZCA 109 (6 May 2019) (TANZLII), at pages 9-11, the Court of Appeal stated that: From the outset, we wish to take off by pointing out that, section 127 (2) of the Evidence Act, Cap. 6, R.E. 2002 (Evidence Act) prior to the amendment, required the trial magistrate who conducts voire dire test to indicate whether or not the child of a tender age understands the nature of oath and the duty of telling the truth; and if he is possessed of sufficient intelligence to justify the reception of his/her evidence. To our understanding, the above cited provision as amended, provides for two conditions. One, it allows the child of a tender age to give evidence without oath or affirmation. Two, before giving evidence, such child is mandatorily required to promise to tell the truth to the court and not to tell lies. 22 | P a g e It is on record that PW 4 appeared before the Court. Briefly, this is what transpired in respect of evidence of PW 4: 23/11/2023 Coram: Hon. F.A. Kahamba-SRM For Pros: S/A Mfinanga Accused: Present RMA: Stella PP: The matter is for hearing, I have two witnesses today. Accused: I am ready for hearing COURT: HEARING CONTINUE WITH PW 4 PW 4: WR Court: How are you PW 4: Nil Court: Are you studying PW 4: Nil Court: Do you have uncle? PW 4: Yes Court: PW 4 has just pointed at the accused to mean that the uncle he knows is the accused person. Otherwise PW 4 cannot express himself. SGD: F.A. KAHAMBA-SRM 23/11/2023 23 | P a g e This extract is the whole of the alleged PW 4’s testimony. I have noted that there was no evidence adduced by PW 4 in this case. What is revealed above was not evidence. It is the principle in Godfrey Wilson vs Republic (Supra) that: The trial magistrate ought to have required PW1 to promise whether or not she would tell the truth and not lies. We say so because, section 127(2) as amended imperatively requires a child of a tender age to give a promise of telling the truth and not telling lies before he/ she testifies in court. This is a condition precedent before reception of the evidence of a child of a tender age. The question, however, would be on how to reach at that stage. We think, the trial magistrate or judge can ask the witness of a tender age such simplified questions, which may not be exhaustive depending on the circumstances of the case, as follows: 1. The age of the child; 2. The religion which the child professes and whether he/she understands the nature of oath; 3. Whether or not the child promises to tell the truth and not to tell lies; Thereafter, upon making the promise, such promise must be recorded before the evidence is taken. 24 | P a g e Given the circumstances of the matter before the trial court, it is evident that there was no evidence of PW 4 on record. That is the reason the trial court noted that PW 4 cannot express himself. I must state that conviction of the appellant did not depend on the testimony of PW 4. It was the totality of testimonies of PW 1, PW 2, PW 3 and PW 5 that established all ingredients of the offence against the appellant. Indeed, appellant’s confessional statements in Exhibits P.2. and P.3 left nothing to doubt on the strengths of the prosecution’s case. That is what the trial court observed on page 7 of the judgement. At this juncture, it is concluded that the third ground of appeal is without merits. The fourth and last ground of appeal challenges the unprocedural tendering of cautioned statement as rights of the appellant to call relative or lawyer was not availed. This ground is not difficult to resolve. It was observed in the foregoing that admissibility of the Exhibit P3 was proper and in accordance with the law. There is no need to re-emphasize it. I have perused the proceedings of the trial court critically. At page 11, it is revealed that PW 5 accorded all the necessary rights to the appellant before recording the statement. First, PW 5 informed the appellant that PW 5 intended to interrogate the appellant. Second, the appellant was availed the right to call a relative or an advocate of his choice prior to recording of the statement. Third, the appellant agreed that statement should recorded in absence of any other person. Fourth, the 25 | P a g e statement was read to the accused person/appellant before he signed through thumb print. In In the case Director of Public Prosecutions vs Fadhili Chengula (Criminal Appeal No.565 of 2019) [2023] TZCA 17525 (24 August 2023)(TANZLII), the Court elaborated at lengthy on confessions and confession leading to discovery. At pages 15-16, the Court of Appeal stated that: Certainly, an oral confession made by a suspect, before or in the presence of reliable witnesses, may be sufficient by itself to found conviction against the suspect - see for example the Director of Public Prosecutions v. Nuru Mohamed Gulamrasul [1988] T.L.R. 82. In Martin Manguku v. Republic, Criminal Appeal No. 194 of 2004 (unreported), the Court stressed that for an oral confession to be valid and form a basis for conviction it must have been made when the suspect to whom the words are imputed was a free agent. It is clear that both oral and documentary account of the confession statement of the appellant categorically was made in free will of the appellant before a free agent. There was nothing to complain about non adherence to sections 10(3) and 9 (3) of the Criminal Procedure Act, Cap 20 R.E. 2022. It is my findings that the fourth ground is unmerited as well. 26 | P a g e The available evidence on record reveals that the prosecution managed to establish beyond reasonable doubt that appellant was culpable of committing unnatural offence against the victim boy child. The evidence of PW 1, PW 2, PW 3, and PW 5 left not reasonable doubts whatsoever. The defence evidence did not manage to arise anything significant to weaken the watertight evidence of the prosecution. Thus, all the grounds of appeal are lacking any cogent merits to warrant this court to allow the appeal. I shall proceed to dismiss all the grounds of the appeal in its entirety. In the final analysis, the appeal against conviction and sentence is hereby dismissed for want of merits. The decision of the trial Court is upheld, both the conviction and sentence imposed against the appellant for the unnatural offence contrary to section 154(1) (a) and (2) of the Penal Code, Cap 16 R.E. 2022 as entered into by the District Court of Kondoa. It is so ordered. DATED and DELIVERED at Dodoma this 31st day of July 2024. E.E. LONGOPA JUDGE 31/07/2024. 27 | P a g e