final judgment DANIEL ANAEL DANIEL Tanzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MOSHI AT MOSHI CRIMINAL APPEAL NO. 20355 OF 2024 (Appeal from the Judgment of the District Court of Moshi at Moshi dated 3th July 2024 in Criminal Case No. 179 of 2023) DANIEL ANAEL DANIEL….………………………….….………..APPELLANT VERSUS REPUBLIC….………..……..………………….…….…………....RESPONDENT JUDGMENT 30th August & 26th September 2024 A.P.KILIMI, J. The appellant namely Daniel Anael Daniel was arraigned at the District Court of Moshi at Moshi “the trial Court”, for one count of unnatural offence contrary to section 154(1)(a)(2) of the Penal Code [Cap 16 R.E 2022]. “the Penal Code”. Upon a full trial, he was convicted and sentenced to serve life imprisonment. Initially, the prosecution at the trial alleged that, on 3rd day of June, 2023 at Longuo B area within the District of Moshi in Kilimanjaro region, the appellant did have carnal knowledge of one “YY” (name withheld to conceal his identity) a boy aged seven years old the against the order of nature. 1 The appellant denied the charge laid against him and thereafter, the case had to proceed to a full trial. The prosecution case was built on the evidence adduced by six witnesses and two documentary exhibits namely, sketch map of the scene of the crime (exhibit P1) and Police Form No. 3 (exhibit P2). On defence side, the appellant fended himself and he paraded other four witnesses. The facts of the prosecution case, as discerned from the trial court record, can be recapitulated as follows; The victim YY, who testified as PW1 stated that on 3rd day of June 2023 he went to the children congregation fellowship which usually conducted at the appellant’s home. When he entered the house, he found the appellant at the sitting room watching Television. Then the appellant went into his room and called him, he responded and followed him. While promising to give him sweets, the appellant undressed PW1’s trouser up to his knees, he asked him to bend on the bed and inserted his penis into his anus, after the incidence, the victim dressed his clothes and got out of the room and they both went to the sitting room wherein the appellant started to teach church lessons. After lessons he went back home. 2 Elona Hamisa Patson Mgaya (PW2) told the trial court that the victim is studying at Kea Primary School, and is aged 7 years, she further said on 3/6/2023 the victim left home around 4pm and went to the house of Christina for church teachings. T the victim came back home around 6 pm. without a sweater, PW2 asked where he left it, PW1 replied that the same was at the appellant’s house. PW1 therefore was ordered to go back for it, then while returning again home, PW2 discovered that PW1 was walking improperly as he was limping. While shocked, she took PW1 to her room and inspected him, she discovered his trouser was wet and his underpants had faeces. She then cleaned the victim who was complaining feeling pain, she observed his anus was reddish. Upon PW2 interrogating the victim to tell her what happen to him, at the beginning PW1 was afraid to tell her but later told her that it was teacher Dani (appellant) who carnally known him against the order of the nature. PW2 informed victim’s father who came and they went with victim to the police station, after reporting the incidence they were given PF3 and went to Mawenzi Hospital for medical examination. In his testimony, PW3 confirmed that on 3/6/2023 he went to appellant’s home to attend church teachings, being there he saw appellant 3 and the victim coming from appellant’s room, then appellant continued teaching them at the sitting room PW4 one F.5955 D/SGT Oscar is a police officer and investigative officer, he was assigned to investigate this case, before that he participated to arrest the appellant on 6/6/2023. After being informed the incident by the victim, he drew the sketch of the scene of the crime with aid of the victim who showed the appellant’s room where the incident took place on 3/6/2023. PW4 also interrogated the accused person who denied the allegations but admitted that PW1 was at his house on the alleged date. Meanwhile, victim’s father (PW5) told the trial court how he was informed by his wife about the incident while on duty, he returned quickly and took the victim to police station and later to the hospital for medical checkup, further he stated how he went with police officers to arrest the appellant. In her testimony PW6-Dr. Edna Rangia Mushi an Assistant Medical Officer at Mawenzi Hospital while on duty, she attended the victim at around 9 pm who was accompanied by his parents and the police officer, in her examination, she observed the victim’s anus had faeces also in his underwear. She also testified to see no bruises but she saw victim’s anal 4 sphincter being loose and, on his thigh, he had a small swelling. Then she took rectal swab and HIV test which were both negative. PW6 recorded his findings in the PF3 which she tendered at the trial court and was admitted at the trial court as exhibit P2. In his defence the appellant (DW1) denied to have committed the alleged offence. He then said that on the alleged date, his auntie who usually teaches the children was not around. She therefore instructed him to teach the children on that day. He also said he was instructed by his aunt to supervise one Amani Sofari Mfinanga (DW3) a technician who supposed to repair a printer. The appellant further said DW3 came and took a printer from sitting room to his room wherein he continued repairing it until evening time. DW1 also confirmed that the victim attended the teaching but he was not the first to arrive therein, DW1 mentioned four children who came first and said after lessons, he allowed them to return back to their home while DW3 was still in his room repairing the said printer. DW1 further challenged on how he was arrested on 6/6/2023 that he was not informed about the offence he alleged committed. To boost his defence, DW1 brought a witness one Anjelina Allan Swai (DW2) who confirmed to be at the house for the teachings on the alleged 5 date and that she was among the first one to arrive at the house together with her friends Vicky, Egler, Debora and Rose. DW2 further said PW1 reached the house later and found them already started learning. Meanwhile another witness Amani Sofari Mfinanga (DW3) testified and confirmed that 3/6/2023 at 3:30 pm he went to the said house for a duty of repairing a printer and left at 7:00 pm. Another defence witness was Christina Mbwambo (DW4) who testified on how he left DW1 at home while asking him to supervise the teachings of the children for that day and DW3 who was supposed to appear for purpose of repairing a printer machine. After a full trial, the trial court being convinced by the prosecution that evidence proved the case against the appellant to the required standard, proceeded to found him guilty, convicted and sentenced him as explained above. In doing so the trial court relied on the credibility of the victim which held to ground conviction under section 127 (7) of the Evidence Act and also besides to that held the evidence of the victim was corroborated by that of PW2, PW3 and PF3 (exhibit P2). 6 The appellant being dissatisfied by the above finding and conviction, has knocked the door of this court marshalled with the following grounds of appeal; first, the trial magistrate erred in law and in fact for failure to evaluate properly the evidence on record as a result arrived at wrong conclusion; Second, the trial magistrate erred in law and in fact for holding that, the evidence of PW1 sufficiently proved that the appellant committed the offence charged against him; Third, the trial Magistrate grossly erred in law and in fact in holding that the evidence of PW1 was corroborated by that of PW2, PW3 and Exh. P1 (PF.3) which established penetration in the victim's anus; Fourth, the trial Magistrate erred in law for failure to observe that the prosecution witnesses were not credible; Fifth, the trial Magistrate erred in law and in fact for failure to observed that the evidence for the prosecution consist contradiction, inconsistency and has discrepancies; Sixth, the trial Magistrate erred in law and fact for ignoring the evidence of the defence; and Seventh, the trial Magistrate erred in law for failure to observe that there was no tangible evidence to prove that the victim was seven years old. 7 At the hearing of the appeal, the appellant appeared and had the service of Mr. Majura Magafu learned Counsel, whereas the respondent Republic was represented by Mr. Makore Maheri, learned State Attorney. At the outset, Mr. Magafu in supporting this appeal opted to start with ground number two which its crux is on whether the prosecution proved the case beyond reasonable doubts. The counsel then conceded that it is true the case of this kind, the best witness is the victim as he testifies what he heard or saw as provided under section 62 (2) of the Evidence act, but further the counsel said in this case the same was not proved to the required standard. To support his stance, he referred the case of Jonas Nkize vs. Republic (1992) TLR 213. Mr. Magafu further argued that despite the fact that the victim was the eye witness, at the age of seven years, under the circumstances of this case, it was impossible only to rely on victim’s testimony, thus the counsel said his evidence required to be corroborated. To support his stance, he referred the reasons for doing so which was stated in the case of Mbushuu @ Dominic Mnyaroje vs. Republic (1995) TLR 97 at page 103. He further on the issue of corroboration disputed the evidence of PF3 because according to PW6 a medical practitioner, testified that it is true 8 she saw bruises in her examination but those bruises might have been caused by any object as shown at page 30. Thus, the counsel prayed this court to see that the testimony of a doctor does not support penetration. Mr. Magafu further faulted the evidence of PW2, a mother of the victim to the effect that, upon seeing her son limping, she inspected him and washed faces which he had on his clothes, but it was later after insisting, the victim told her that he was sodomized, but when his father was called, he came but did not inquiry on what happened to the child. Arguing in respect to contradictions on prosecution witnesses, Mr. Magafu submitted that evidence of PW2 is doubtful and it contradicts the evidence tendered by the victim’s father and that of PW5 an Investigator. The counsel contended that PW5 at page 22 said that he didn’t remember when they went at appellant’s home for search and arrested the appellant since it was night, and further said they arrested using the Inspector’s car which its use was permitted by OC-CID, but later said he didn’t know the owner of the car. But differently, the mother and father of victim said they used their own car. Also, the counsel said PW5 stated that when he went to arrest the appellant, he saw people at the appellant’s house among them was the mother of accused person, but he did not inform his mother 9 why he was arresting the appellant and did not interrogate him as an investigator. Therefore, Mr. Magafu doubted the evidence of PW5 to be credible because earlier he stated that he arrested the appellant while being with PW2 and PW5 but later said he came to know the incident on 14/06/2023. Mr. Magafu also faulted the credibility of PW3 when testified that he saw the victim and appellant coming out of the room, but when cross examined the said victim, did not tell him anything on what happened as he was happy and answered all questions that were asked, and that they also sang the songs together. In that regard the counsel for appellant concluded that the trial Magistrate failed to discover that PW3 was not credible to corroborate evidence of victim to warrant the appellant conviction. In respect to appellant’s defence, it was Mr. Magafu contention that, the trial Magistrate failed or misdirected to consider the defence evidence, this is because the evidence that victim was the first to attend the said class was rejected by appellant and also added the said rejection by appellant was corroborated by DW2 and DW3 who stated that they were the one who were first to arrive in that house used for teaching Christian 10 faith. The counsel expounded that DW2 stated at page 36 that on that date they found no children, no one was in the room. Whereas, DW3 a technician who was repairing printing machine in that house, said in his testimony that he was repairing printer at the room of appellant and stayed there up to 1900hrs as shown at page 38 of the trial proceedings. Thus, Mr. Magafu concluded that the evidence of the victim is not credible because DW2 and DW3 entered the said home first. Moreover, he added that this matter was not thoroughly investigated because DW3 was not interrogated while he was present the whole day. Mr. Magafu further faulted the trial court on evaluation of evidence, and said at page 40 shows the victim was not interested with Christian faith teachings that is why he raised this incident. The counsel insisted failure to evaluate the evidence led the trial magistrate to convict the appellant while evidence was not satisfactory. Mr. Magafu then prayed to this first appellate court to step into the shoes of the trial court evidence and make re-evaluation thus will discover that the case was not properly investigated and as a result the court did not get truthfulness of what happen at scene. To support his contention, he referred section 312 (1) of 11 Criminal Procedure Act and the cases of Amiri Mohamed vs. Republic (1994) TLR 138. Mr. Magafu further was of the view that failure to evaluate evidence properly by the trial court caused the defence evidence not to be considered and the appellant was to benefit from such failure. He referred the decision of Shija Massawe vs. Republic, Criminal Appeal No. 158 of 2007 at page 6. Further the counsel for appellant also argued that failure of evaluation was also seen when the trial court considered the issue on whether penetration was proved. He said the fact that the victim was seen limping cannot amount to penetration as the Doctor testified that bruises can be caused by any object which is blunt not only the penis. Thus, Mr. Magafu prayed for this court to revisit prosecution and defence evidence and find no offence was proved against the appellant. He invited me to consider the case of Victor Goodluck Munuo vs Republic, Criminal Appeal No. 357 of 2019 wherein it was found no penetration and the court acquitted the accused. Lastly, Mr. Majura said that he had no dispute on the issue of age of the victim, thus prayed to be abandoned. Rebutting to the above grounds, Mr. Maheri, Learned State Attorney opted to start with the claim by the applicant that the trial court did not 12 evaluate evidence, he objected this claim and prayed this court to look keenly on the trial court judgment at page 12, 13, 14, 15 and 16 wherein the trial magistrate did evaluate prosecution case and defence evidence. Therefore, he concluded that all principles in the case of Shija Masawe (supra) were followed. Further Mr. Maheri opted to argue ground number 2, 3, 4 and 5 in consolidation because they were intertwined in one issue which is whether the case was not proved beyond reasonable doubt. In the outset he cited the case of Seleman Makumba vs. Republic, (2006) T.L.R. 379 and submitted that the victim PW1 as shown at trial court typed proceedings at page 10, 11 and 12 testified that the appellant was called DANI and also that he inserted ‘kidudu’ which is penis to his buttocks, but at page 11 said he was afraid to tell his mother because he was threatened to be beaten by the appellant. On the issue of corroboration, Mr. Maheri submitted that evidence of the witnesses was corroborated by Medical Doctor at page 28 of the said proceeding when PW6 stated how the victim was examined and found that his anus sphincter muscles were loosen. Mr. Maheri further said that part of the body cannot be so without penetration, but also Mr. Maheri said in 13 cross examination made to PW6, she said that the loose in sphincter muscle can be caused by penetration by a blunt object and that blunt object may be a penis or other object. Responding to claim of discrepancies alleged, Mr. Maheri denied the alleged contradictions and said the allegation that PW4 did not inform the appellant’s mother on why his son was arrested was not true he reffered to page 21 of the proceedings that he explained to the appellant’s mother the offence the appellant was accused for. Refuting on claim of corroboration, Mr. Maheri submitted that at page 17, PW3 testified that he saw the victim and appellant coming from the room of the appellant, by then PW1 was already said he was called with the appellant in his room. In that regard Mr. Maheri concluded the claim had no merit. Mr. Maheri next contention was on allegation of the trial court not to consider defence evidence. He contended that all defence witnesses and DW1 did not state anything about the offence charged, no one stated why is not the appellant who committed the offence, no evidence was adduced in respect to DW3 a technician in respect to how he entered the main gate, when he entered the said room which alleged to belong to him, but also 14 did not say if all the time he was with the appellant in his work. Mr. Maheri then concluded that the defense evidence was properly evaluated and said that the issue of grudges or conflict were not proved. Thus, he concluded that all grounds have no merits and prayed the same be dismissed. In his brief rejoinder Mr. Magafu, maintained that there was no enough evidence to convict the appellant at the trial court, also no evaluation of evidence was done by the trial magistrate. He further maintained that there was contradiction between PW4 as investigation officer and PW2 victim’s mother and urged this court to re-evaluate the evidence, and will note that even the time to arrest accused differ, PW2 said they went to arrest appellant at 1900 while investigator PW4 said it was 2100 hours. The learned counsel further argued that what was done by trial court is summarization of evidence, and did not state the reasons why she rejected the evidence of the defence case. In respect to a doctor, the counsel contended what he said is against what he wrote in a PF3, but later explained that bruises may be caused by any object. Meanwhile the witness who is the father, said he did not ask the victim despite of being told what happened to him. Lastly, the learned counsel concluded that relying on case of Seleman Makumba (supra), depends on measuring 15 whether the victim told the truth and is only the truth can be relied for conviction. After hearing the oral submissions of the learned State Attorney and that of appellant’s learned counsel, in light of the grounds of appeal, I am mindful of the duty of this court as the first appeal court that its mandate is well settled in law. The mandate is for the Court to reconsider the evidence that was adduced in the trial court, evaluate it and draw its own conclusion, bearing in mind that it did not see or hear the witnesses, and should make due allowance in that respect. (see Allen Rutatekururwa Rugazia vs Parfects Ruteganya (Civil Appeal No. 530 of 2022) [2024] TZCA 530 (TANZLII). By so understanding in disposing this appeal, I will flow in sequence as on each ground claimed by the appellant’s counsel. To start with Mr. Magafu’s claim in respect to ground number two, that under the circumstances of this case, it was impossible to rely only on the testimony of the victim, and hence his evidence required to be corroborated, and proceeded to flout the evidence of PW2, PW3 and exhibit P3 that did not corroborate victim evidence. 16 Before I proceed on this claim for purpose of reference, I wish to reproduce what were the finding of the trial court after evaluation of evidence, at page 16 of typed judgement the trial court Magistrate said; “In the premises, the credible evidence of PW1 sorely is sufficient to ground conviction in term s of Section 127(7) of the Evidence Act. Besides, in the instant case, the evidence of PW1 is corroborated by that of PW2, PW3 and the documentary evidence (PF3) "Exhibit Pl" which established penetration into the victim's anus.” From the above extract, it can be discerned that the trial court firstly considered PW1 evidence suffice to ground conviction, thus the issue of corroboration was an added to what she already decided. In the above, the law is very clear on this aspect, because it is settled that the best evidence of this kind of offence comes from the victim. See Selemani Makumba vs Republic, (supra), furthermore Section 127(7) clearly provides that where the evidence of a victim of Sexual offence is credible, it does not 17 require corroboration. For clarity this provision is reproduced as hereunder:- "Notwithstanding the preceding provisions of this section, where in criminal proceedings involving sexual offence the only independent evidence is that of a child of tender years or of a victim of the sex ual offence, the court shall receive the evidence, and may, after assessing the credibility of the evidence of the child of tender years or as the case may be the victim of the sexual offence on its own merits, notwithstanding that such evidence is not corroborated, proceed to convict, if for reasons to be recorded in the proceedings, the court is satisfied that the child of tender years or the victim of the sexual offence is telling nothing but the truth." [Emphasis provided]. From the import of the above law, it has triggered me the point to be answered by this court is whether the victim was credible to the extent to be the witness of truth hence to ground conviction as above. In the outset, I am aware this court as an appellate court can determined the credibility of the witness in two other ways. One, when 18 assessing the coherence of the testimony of that witness and two, when the testimony of that witnesses is considered in relation to the evidence of other witness including that of the accused person. (See Shabani Daudi vs Republic Criminal Appeal No. 28 of 2001 (unreported) I have considered the testimony of the victim as right said by Mr. Maheri at page 10,11 and 12 of the trial proceedings. I am satisfied, the victim PW1 was so coherent and consistent in his evidence. The same is deduced from the facts that first, he was systematic to narrate how the offence was committed from how he entered to the said house, called into the room by the appellant while promised to be given sweets, he clearly knew him as his teacher, the appellant undressed his clothes and finally the appellant did insert his penis to his anus. secondly, he mentioned the appellant on the date of the alleged offence, and thirdly, the victim repeated to say what was done to him by the appellant to his mother and police station. Having regard the above cumulatively, I am of considered view, as the trial court which was best placed to assess the credibility of the witnesses, I am settled under the above circumstances I cannot fault the trial court finding on the credibility of the victim. Nevertheless, I am 19 mindful as alerted by Mr. Magafu in his submission that the rule in Selemani Makumba (supra) did not intend that the evidence of a victim of sexual offence would be alpha and omega. It is until such time victim’s evidence has passed the test of truthfulness in order to cause a conviction. Having the same in mind, I have assessed the victim’s evidence in relation to other witnesses testified as alluded above, I am settled he was credible and worth to be believed as a witness of truth. (See Mohamed Said vs Republic, Criminal Appeal No. 145 of 2017; Toyidoto s/o Kosima vs Republic Criminal Appeal No. 525 of 2021 and Kaiza Gaudin vs Republic Criminal Appeal No. 170 of 2022 (both unreported). For the foregoing analysis which was tasked to me by Mr. Magafu, I am considered view the evidence of the victim PW1 only as held by the trial court was enough and suffice to ground conviction to the appellant. On the second part of the finding of the trial court as alluded above was in respect to corroboration. Mr. Magafu faulted the trial court to find that the evidence of PW2, PW3 and PW6 who tendered PF3 did not met the threshold of being corroborative, in that regard he also relied on their contradictions on them. As rightly pointed out by Mr. Magafu when referred the case of Mbushuu @ Dominic Mnyaroje vs. Republic (supra), with 20 respect, the court in the above case was clear and straight forward, the court pointed out that; the purpose of corroboration is not to give validity or credence to evidence which is efficient or suspect or incredible but only to confirm or support that which as evidence is sufficient and satisfactory and credible. Therefore, from the said holding, it is trite law that a court will looks for corroboration when, in the light of all the evidence, a witness is worthy of belief. As I hold hereinabove, I have satisfied PW1 was a credible witness worthy to be believed and his evidence is enough to enter conviction. Be that as it may, now let me look whether there was evidence to corroborate him. To start with the evidence of PW3, I have scanned the trial court typed proceeding at page 17, he testified that he saw the appellant and the victim coming from the room, I have scanned the reply when he was cross examined, no doubt was created by the defence case to shake his credibility, rather questions asked in cross examination caused him to be more elaborative and confidence to what he was testifying. Thus, I find him credible witness worth to be believed. Therefore, in my opinion Mr. Magafu contention on this witness have no merit. Hence, I find no reason 21 to fault the holding of the trial court in respect to corroboration to this witness. In respect to PF3 tendered, Mr. Magafu flouted it not to corroborate the evidence of the victim, because PW6 as a medical practitioner testified that it is true she saw bruises in her examination but said those bruises might have been caused by any object as shown at page 30. With respect to Mr. Magafu, what he submitted in this regard in my perusal of the record I think he was is misplaced in reading trial court scripts. Instead, as rightly submitted by Mr. Maheri, the testimony of PW6 a medical practitioner, as reflected at page 28 of the trial court proceeding, said the victim had no bruise, but the anal sphincter muscles were loose. She then proceeded at page 29 and said the sphincter muscles are usually tightens, but for the victim’s muscles, they were loose even without inserting something. At page 30 which Mr. Magafu extracted his observation above which is different to what PW6 said. And for easy of reference, I quote the very passage of PW6 in her cross examination she said; “There are no other reasons for the sphincter m uscles to be loose apart from being inserted by a blunt object. A blunt object 22 m ay be a penis, fingers etc. It is possible for a check (child) to be inserted with a blunt object and still no experience bruises” [Emphasis added] In my view of the above extract, it can be discerned that the facts Mr. Magafu said are different from what transpired at the trial court. And from that I agree with the counter submission by Mr. Maheri that the said sphincter cannot cannot be loose without penetration as per the wording of PW6 quoted above. Therefore, in the above regard I cannot agree with Mr. Magafu when he urged that the testimony of a doctor does not support penetration. Henceforth, conclusively in this issue I find no reason to fault the trial court holding that this evidence corroborated the evidence of the victim, therefore in a whole this claim as grounded by appellant’s counsel fails for want of merit. Another ground which the appellant’s counsel faulted the trial court is contradictions between the witnesses, in this he faulted the trial court failure to evaluate their evidence. According to Mr. Magafu the same arose between PW2, PW4 and PW5 who are mother, police investigator and victim’s father respectively, the limbs of contradiction are, first was on at 23 what time the appellant was arrested and secondly, the motor vehicle used to go to appellant’s home for purpose of arrest him, and third, when PW5 knew the incident before he was assigned a file or not. To start with the first limb above, it is not true at page 22 of proceeding as alleged by Mr. Magafu that PW4 said he went at the appellant at night, but what he said is that, he doesn’t remember the time and further said they don’t search at night. in respect to the motor vehicle used PW4 as reflected on the same page, it is true he said he used inspector’s car but he did not know the owner of the car though was permitted by OC-CID and in other version PW5 said at page 25 of the proceeding used their private car to move to the appellant home. And in third limb at page 20 of proceeding PW4 testified on 6/6/2024 he participated to arrest the appellant with the police officers led by Inspector Hamisi and at page 19 of the trial court proceeding said on 14/06/2024 he was assigned case file of this matter for investigation. I have considered the above evidence, the question I have asked myself is whether the above alleged to be contradiction affected the credibility of key witnesses in prosecution case, as alluded hereinabove key witnesses in this matter is PW1 the victim himself, and other are PW3 and 24 PW6 a medical practitioner, who are not on above segment Mr. Magafu said are contradictions. Be that as it may, in my scrutiny as I shown above with pages of the trial court record, in my view no any contradictions which can shake the root of this matter. I am saying as above because, in the first limb above, PW4 said clearly when the appellant was arrested at page 20 that it was on 6/6/2023 at around 5 pm. In the second limb above the evidence show the car used by PW4 was allowed by OC CID, meanwhile private car was used by victim’s father and belong to him. Finally in respect to the knowledge of PW4 about the case, I think the evidence is clear. In my view the fact that PW4 participated in arresting the appellant on 6/6/2024 cannot mean he knew in detail about the matter as when he was officially assigned to be the investigator of this case on 14/6/2024. However, the claim by Mr. Magafu that the accused was arrested without informing his mother and offence alleged to him is unfounded, because at page 21 of the trial court typed proceeding, as rightly submitted by Mr. Maheri, PW4 stated that the accused's mother was present during appellant’s arrest and she was informed that, they appeared to arrest the accused after being accused to commit the offence of unnatural offence. 25 Therefore, for the foregoing I am of the considered view the alleged contradiction by the appellant’s even if arise, under the above circumstances is too flimsy to create any doubt on key prosecution case as depicted above (See Dickson Elia Nsamba Shapwata and Another vs Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 (TANZLII). Another complaint by the appellant as depicted in ground number six of appeal, is failure to consider defence evidence, Mr. Magafu relied on the evidence of DW2 and DW3 and claimed that the trial court failed to consider that they were the first to arrive at the said house, and further alarmed that DW3 a technician who was repairing printer in that house, did that work at the room of appellant and stayed there up to 1900hrs. Thus, the counsel urged that this court to evaluate and will see trial court did not evaluated defence evidence, thus failed to give reasons why did not consider defence evidence. It is settled law that, failure to take into account any defence put by an accused person, will vitiate the ultimate conviction. (See Venance Nuba and Another vs Republic, Criminal Appeal No. 425 of 2013 (unreported). In the instant case, I have revisited of the typed trial court judgment at page 13, I have seen the learned Senior Resident Magistrate 26 discussed how the appellant defended by depicting his impossibility of committing the said offence charged against him. In my considered view the same amount to the assessment of defence evidence, because by doing so she acknowledged and recognized whether there were impossibilities alleged for the commission of the offence, so that she can agree with the said defence or reject them. In my view, the said act amount to the intuition of defence evidence ready to decide. Consequently, from the above intuition and having related the same with the prosecution evidence, the trial court concluded in respect to defence of the appellant and held at page 16 of the typed judgment as follows; “Despite DW1's allegations that he was not the one committed the said crime, the circumstances prove otherwise as no one testified the existence of the grudges between PW1 or his parents against the accused person. Basing on the prosecution evidence, it is my considered view that the evidence of PW1 sufficiently proved. that the accused person committed the offence he is charged with. Firstly, he gave a coherent narration of the incidence, and secondly, the evidence clearly shows that the accused person was properly identified by PW1.” 27 Thus, in view of the above endeavours, demonstrate the process from defence evidence to the conclusion, therefore I hastate to agree with Mr. Magafu that appellant defence was not evaluated and considered. Be that as it may, as a duty imposed to this court by the law, if the same was not in the same tune of the law, the remedy has always been for the first appellate court to analyse the evidence that was not considered and come up with a position that meets the ends of justice. (See Shabani Haruna @ Dr. Mwagilo vs Republic Criminal Appeal No. 396B of 2007 (unreported) and Nusura Sultani Mtinge @ Nusura Sultani Mtinde vs Republic (Criminal Appeal No. 61 of 2021) [2024] TZCA 779 (TANZLII). In that regard, I hereby step into the shoes of the trial court to consider the defence evidence in order to ascertain myself whether the same raised doubt on the prosecution case or not. I have considered the alleged material defence witnesses Mr. Magafu relied on to be considered who in his view corroborated appellant’s defence. I have scanned the evidence of PW2 who said the victim came and found her with other children while already teaching was continuing. In my view, firstly, the fact that she did not state the time she reached 28 the said house and the time the victim reached the teaching left questions unanswered, because anything can happen in between unknowingly to her, take regard the number of entrance doors and exits doors of the said house was not stated. Second the fact that PW2 knew that the victims is not interested with Christian teachings to my view had nothing to create doubt to prosecution case. In regard to PW3 a technician, as right pointed by Mr. Maheri at page 38 of the trial court type proceeding, PW3 said only the time he went at the said house, therefore in my view first, he did not say when he entered the room; second, he did not say whether the room he entered belong to who; third, he did not tell the trial court whether there was no other rooms in the said house other than the one he entered and fourth, PW3 did not say if all the time he was with the appellant in his work. Thus, from the foregoing, I ascertain the said evidence alleged to be corroborative to the appellant evidence left much to be desired as alluded above, thus I am settled neither corroborated appellant evidence nor raised any doubt on the prosecution case as the trial court decided. This is because their evidence did not fill all gaps upon which the appellant can 29 commit the alleged offence without their knowledge. In the premises, I find this ground misplaced and I proceed to dismiss forthwith. For the purpose of sentence imposed, though the appellant’s counsel dropped this ground, in the circumstance of this matter, I find apposite to see whether the victim was of the age as per ingredients of the offence charged, according to the trial court record, the charge sheet of unnatural offence arraigned to the appellant depicted he was charged contrary to section 154(1) and (2) of the Penal code. Section 154(1) create ingredient of offence to be proved and the later 154 (2) establishes sentence to be imposed when the offence is committed to a child under the age of eighteen, years then offender shall be sentenced to life imprisonment. According to the record at page 7 of trial court proceeding the victim said he was seven (7) years old that is why the trial court inquired whether he knows the meaning of oath, second victim’s mother (PW2) at page 13 told the trial court under oath that the victim was studying at KEA primary school in standard III and stated victim’s age to be 7 years old. In that regard to my view the said suffice to prove the age of the victim which as shown above is within the scope of the ages of the victims envisaged by the law above. 30 In conclusion, I am satisfied that the evidence taken as a whole established that the prosecution's case against the appellant was proved beyond reasonable doubt. Consequently, I am satisfied that the appellant was duly convicted of the offence laid under section 154 (1) (a) of the Penal Code, I am also in line with the trial court for the mandatory life imprisonment which it imposed to the appellant in accordance with the dictates of section 154 (2) of the Penal code, as the offence was committed on a child under the age of eighteen. In the end, I find no merit in this appeal and I hereby dismiss it in its entirety. Order accordingly. DATED at MOSHI this 26th day of September, 2024. X JUDGE Signed by: A. P. KILIMI 31 Court: Judgment delivered today on 26th day of September, 2024 in the presence of Appellant in person. Appellant’s learned counsel and Respondent’s representative absent. Sgd; O.N. Kipeta Acting DR 26/09/2024 Court: Right of Appeal explained. Sgd; O.N. Kipeta Acting DR 26/09/2024 32