MBEGU EDITED

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 19820 OF 2024 (Arising from the District Court of Ilala at Kinyerezi (Before Hon. Bitony Mwakisu- SRM) dated 11th of June, 2024 in criminal case No. 197 of 2023) MBEGU GERMANUS ................................................................ APPELLANT VERSUS REPUBLIC............................................................................ RESPONDENT JUDGMENT 12th February &19th March, 2025 MWANGA, J. The appellant before this Court was convicted at Ilala District Court for an offense of unnatural offense contrary to section 154 (1) (a) and (2) of the Penal Code (Cap 16 RE 2022). It was alleged by the prosecution that, on diverse dates between the years 2019 and 2023 in the Vingunguti area, the accused sodomized a 9-year-old boy (Name withheld for the sake of concealing his identity. In this judgment, he will be referred to as a victim). The brief background, as depicted in the proceeding, goes as follows: the accused and the victim were living in the same house. It seemed that the accused once took the victim out for a walk when he returned from school, whereby they proceeded up to the unfinished building at ’MM, where the appellant asked the victim to be unclothed and bend over, and apply liquid 1 substance in victim’s anus and insert his penis in his anus. The victim sustained severe pain. When the accused satisfied his desire, he threatened to kill the victim if he revealed the awful act to anybody. The victim went home but was unable to disclose the ordeal to anyone. The prosecution alleged further that the accused committed the ill act on several occasions. Thus, the victim started to discharge urine and feces unnoticeably. The problem persisted, and the same was noted in the victim’s school. Therefore, his parents were informed about the act. The victim was inquired by his teacher (PW5), who narrated the ordeal to the teacher. He said the problem is caused by sodomy acts done to him by their landlord’s son whom they are living with. Following that revelation, the victim’s father was called, and the victim narrated the same story to him. Acting on that information, the victim’s father (PW1) went to report the matter to the Buguruni police station, and the accused was arrested on the next date. The Victim was taken to Buguruni Health Centre for treatment, where he was attended by Magdalena Henry Chalo (PW4), a medical doctor at Buguruni Health Centre; it was revealed that the victim’s anal path was loose. PW4 filled PF 3, which was tendered and admitted in court as exhibit P1. 2 When arraigned in court to face his charges, the appellant pleaded not guilty, a fact that led the prosecution to parade five witnesses and tender one exhibit in an attempt to establish the accused's guilt. On his party, the appellant relied on his testimony. After a full trial, the court was convinced that the prosecution had proven its case beyond a reasonable doubt, found the appellant guilty as charged, convicted him, and sentenced him to serve a mandatory life imprisonment. Displeased, the appellant is before this temple of justice trying to challenge his conviction and sentence fronting eight grounds and one additional ground of grievances as summarized hereunder: 1. That the learned trial magistrate grossly erred in law to convict the appellant contrary to section 231 (1) of the Criminal Procedure Act 2. That the learned trial magistrate grossly erred in law and fact to convict the appellant relying on Pw2’s evidence simply because he promised to tell the truth without subjecting the same to test truthfulness as required under section 127 (6) of the Evidence Act. 3. That the learned trial magistrate grossly erred in law and fact to convict the appellant on PW1 and PW2’s evidence, 3 which was improbable or implausible. 4. That the learned trial magistrate grossly erred in law and fact to convict the appellant on the PW4 clinical officer expert who did not Furnish the court with necessary scientific criteria for resting the accuracy of their conclusion to enable the court to form the Independent Judgement. 5. That the learned trial magistrate grossly erred in law to contravene section 192 (3) of the Criminal Procedure Act. 6. That the learned trial magistrate grossly erred in law for failure to draw an adverse inference to the prosecution for failure to call vital witnesses who could fill in the gaps in their evidence. 7. That the learned trial magistrate grossly erred in law to convict the appellant relying on Pw1, Pw2, Pw3, Pw4, and Pw5 evidence which is inconsistent and material contradicted. 8. That the learned trial magistrate grossly erred in law to convict the appellant, disbelieving defense evidence that raised reasonable doubt to the prosecution case. 9. That the learned trial magistrate grossly erred in law to convict the appellant in a case that was not proved beyond 4 a reasonable doubt. On the strength of the said grounds of appeal, the appellant prays this Court to allow the appeal, quash the conviction, set aside the sentence, and set him free from prison. The hearing of the appeal took the form of a written submission, as the appellant appeared unrepresented, while Ms. Phoibe Magiri, a learned State Attorney, represented the respondent. In his submission, the appellant sought leave of the court to proceed with the additional ground as ground number one and to combine ground numbers 3 and 6; the remaining grounds were submitted in sequence. On their part, the respondents addressed the grounds of appeal as submitted by the appellant; however, they combined grounds 7 and 8. In support of the first ground of appeal, the appellant contended that the learned trial magistrate failed to comply with section 231(1) of the CPA. This prejudiced the appellant, as he was unable to utilize his right to call his witnesses and prepare a proper defense. He contended that the record shows nothing about whether the appellant had a case to answer or whether the prima face case was established to require the appellant to make his defense and call witnesses for his defense. He said it was strange as it is not clear where the trial magistrate got the notion that the appellant was not calling the witnesses. 5 He lamented that the substance of the charge was not explained to the appellant, and he was not asked if he would call a witness. To him, that anomaly was fatal, and it prejudiced the appellant, as it denied the appellant a fair trial, as enshrined under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, Cap 2, R.E. 2002, thus prejudicing the appellant. He concluded that this anomaly was fatal and incurable under section 388 of the CPA. He, therefore, prayed the court to nullify the proceeding and judgment, quash the conviction, and set aside the sentence. In reply, Ms. Maghiri contended that Section 231 of the CPA requires a magistrate, after completion of the prosecution case, to enter a ruling as to whether the accused has the case to answer and require him to make his defense. Thus, the court shall explain to him his charge and inform him of his right to give his evidence on oath, affirmation or not, and the right to call witnesses. She submitted further that, on page 7 of the proceedings, the ruling of a case to answer was delivered, and the court addressed the appellant of his rights as per section 231; the court further recorded the appellant’s response who stated he would defend himself on affirmation and will not have any witnesses apart from himself. She was insistent that the trial court had complied with the requirement of the said section; hence, this honorable court should 6 disregard this ground of appeal. Having considered the above submission, I wish to point out that this ground need not detain me much. The records of the trial court, in the proceedings managed by eCMS, dated 30/04/2024, speak voluminously that, after the closure of the prosecution case, the trial magistrate entered a ruling on the case to answer, then addressed the accused in terms of section 231 of CPA. For clarity, this is what transpired on the said date. “RULING Having reviewed the evidence presented by the prosecution, I am convinced that the prosecution has managed to stage a case that the accused is duty-bound to defend. Having said so, I invite the accused to address the court as per his defence. ACCUSED: I will defend on affirmation, I dont have any witness or exhibit. COURT 1. Defence hearing on 20/05/2024 2. ABE” The above excerpt clearly states that the trial magistrates delivered a ruling on a case to answer and addressed the appellant's rights as per Section 231. The court further recorded the appellant's response, who 7 stated he would defend himself on affirmation and would not have any witness apart from himself. Thus, the accused’s allegations that the trial magistrate did not adhere to the provisions of section 231 of the CPA are unfounded. Hence, the additional ground of appeal is hereby dismissed. In the second round, the appellant contends that PW2’s evidence was used to convict the appellant simply because she promised to tell the truth without subjecting the same to test his truthfulness as required under section 127(6) of the Evidence Act. He cited the case of Wambura Kiginga vs. R, Criminal Appeal No. 301 of 2018 (unreported), to support his position. He submitted that the trial magistrate, after posing some questions to ascertain whether PW2 was telling the truth, did not go further to assess the credibility of PW2. For instance, when the court posed a question: what have you come to tell us? PW2, the answer I came to speak the truth. To him, the answers and questions imposed did not match, as the victim did not answer the questions imposed on him. He said the court had to allow PW2 to elaborate. He submitted further that the evidence adduced by Pw2 fell short of exhausting the meaning of telling the truth. Worse still, the trial magistrate did not show anywhere on the record how Pw’2 evidence was assessed to confirm his credibility. 8 The appellant argued further that, according to the record, it was Pw5, Mr. Lyamuya, and Pw2’s mother initiated the case, but neither Pw5 nor Pw1 inspected Pw2, as Pw5 testified that Pw2 was checked by his mother, who told her that Pw2 has such a tendency to discharge feces un noticed It was his further contention that if Pw2 tends to discharge feaces at home, as reported by Pw2’s mother, why did she go to inspect him and bring him back the next day? Second, if it is true that Pw2 has the same tendency, why were Pw2’s mother and Pw1 reluctant to take him to the hospital as Pw2 told this court that since 2021, when he was in std II, Mbegu used to sodomize him. He lamented that, according to PW5’s evidence, it was PW2, the victim’s father (PW1), who mentioned the said Mbegu, but when Pw2 was brought before the court to testify, he said that Mbegu sodomized him. To him, PW1’s evidence was not assessed, and it is incredible to convict the appellant, as the evidence of PW1 and PW2 is similar or possibly concocted. Per contra, Ms. Magiri admitted that it is trite law that, before examining a child of tender years, the court must ask the child questions to determine whether they understand the nature of the oath or will 9 promise to tell the truth. If the child understands the meaning of an oath, they will then proceed to take the oath; if not, they will promise to tell the truth. To buttress her position, she cited the case of Amour Hamis Madulu vs. Republic, Criminal Appeal 322 of 2021 [2023] TZCA 229 TANZILII, which in turn cited the case of Issa Salum Nambaluka vs. Republic, Criminal Appeal 272 of 2018 [2020] TZCA 10 TANZILII. She contended that the proceedings on pages 9 to 10 express clearly that the court put questions to assess PW2, who, after answering the questions, promised to tell the court the truth and not lie. She held that the appellant's allegation that no questions were asked of PW2 was baseless, as the record shows that the requirement specified under Section 127 of the Evidence Act was complied with. Regarding the credibility of PW2, Ms. Magiri cited to the court the case of Dickson Elis Nshamba Shapwata and another vs. Republic, Criminal Appeal No. 92 of 2007(unreported), where it was held that it is a peremptory principle of law that every person, who is a competent witness in terms of the provisions of section 127(1) of the Evidence Act is entitled to be believed and hence a credible and reliable witness unless there are cogent reasons as to why they should not be considered. She then submitted that there is no rule of thumb in determining the credibility, truthfulness, and reliability of a witness. It all 10 depends on how the demeanor of the witnesses has been assessed by the presiding judge or magistrate, and the assessment is made of the evidence presented in court. She went on to submit that, as per the case of Shabani Daudi Vs. Republic, Criminal Appeal No. 28 of 2001 (unreported), the credibility of a witness can be determined by assessing the coherence of their testimony and considering it in relation to the evidence of other witnesses. She submitted further that, from the record, it is clear that PW2 testified as to who carnally known him against the order of nature by mentioning the appellant at school, to his parent, and even before the court, and stated the reasons as to why he failed to inform his parents regarding the abuse since the appellant has been threatening to kill him if he let anyone know. According to Ms. Magiri, all other witnesses, including his school teacher, parents, and doctor, confirm that PW2 was indeed abused. He had all signs that his discharges and smell abused him but they could not know why, and all that was due to the fact PW2 was afraid to be killed by the appellant if tell his parents or teachers. Regarding Yunus and Sajdin, she stated that PW2 refused and that they were not responsible. She maintained that the court was proper in finding PW2 to be a credible and reliable witness, and we argue that this court should treat him as such. She prayed that this ground of appeal be disregarded. 11 I have carefully considered the rival submission from both parties and the evidence on record, which I have inquisitively perused. I will begin by examining whether the evidence of PW2 was obtained in contravention of Section 127(2) of the Evidence Act. For easy reference, section 127(2) of the Evidence Act is quoted here under: ’’ “S.127(2) A child of tender age may give evidence without taking an oath or making an affirmation but shall, before giving evidence, promise to tell the truth and not to tell any lies.’’ The above section clearly shows that the law requires a child of tender age to promise to tell the truth to the Court and not lie before receiving their evidence. The requirement of him/her to promise the Court to tell the truth and not tell lies comes in after the Court is satisfied that, being a child of tender age, does not understand the nature of oath, having in mind the common fact that he/she is also a competent witness to testify under oath, upon satisfaction of the Court of his/her competency. Therefore, if the child of tender age understands the nature and meaning of an oath, he should give evidence on oath or affirmation, or otherwise; if he does not, he will be required to promise to the court to tell the truth and not to tell lies. Refer to the case of Ramson Peter Ondile 12 vs. Republic (2022) TCA 608. In another case of John Mkorongo James vs. Republic, Criminal Appeal No 498 of 2020, CAT unreported, on page 12, the apex court had this to say; “The import of section 127 (2) of the Evidence Act requires a process, albeit a simple one, to test the competence of a child witness of tender age and know whether he/she understands the meaning and nature of an oath, to be conducted first, before it is concluded that his/her evidence can be taken on the promise to the court tell the truth and not to tell lies. It is so because it cannot be taken for granted that every child of tender age who comes before the court as a witness is competent to testify or that he/she does not understand the meaning and nature of an oath and, therefore, that he should testify on the promise to the court tell the truth and not tell lies. It is common ground that there are children of tender age who very well understand the meaning and nature of an oath and are thus required to be sworn and not just promise to the court to tell the truth and not tell lies before they testify. This is the reason why any child of tender age who is brought before the court as a witness is required to be examined first, albeit in brief, to know whether he/she understands the meaning and nature of an oath before it is concluded that he/she can give his/her evidence on the promise to the court tell the truth and not tell lies as per section 127 (2) of the Evidence Act”. 13 Having that position in mind, the follow-up question is whether the trial court followed the procedure as illustrated in the above-cited case. The appellant laments that the procedure was not followed, while the respondent contends that the trial magistrate followed the procedure. For clarity, this is what transpired in court. “PW2: ABDUL RAZAK, 10YRS, MUSLIM, ZARAMU, STUDENT, RESIDENT OF UBUNGO COURT: PW2 is a child of tender age, this court is duty bound to know if he promises to tell the truth. COURT: What does your religion teach you about lies? PW2: To tell lies is to sin COURT: What have you come to tell us? PW2: I came to speak the truth COURT: What do you promise the court PW: I promise to speak the truth and not lies COURT: PW2 has promised to speak the truth, so his testimony is now recorded”. Examining the nature of questions asked by the trial magistrate was not intended to determine whether the child understood the nature of the oath but rather to ensure a promise to speak the truth. However, in my 14 view, since the child did not testify on oath but instead promised to speak the truth, the preliminary test was not mandatory. My stance finds solace in the case of Mathayo Laurence Willium Mollel vs. Republic, Criminal Appeal No. 53 of 2020, where the Apex court had this to say; “In the case at hand, the child witnesses who are the victims on the counts on which the appellant was convicted did not give evidence on oath or affirmation. They simply promised to tell only the truth. We think this was quite appropriate in terms of sub-section (2) of section 127 of the Evidence Act reproduced above. We disagree with the appellant that the trial court should have conducted a test to verify whether the child witnesses understood the meaning of an oath or affirmation. In our considered view, that requirement would only be necessary if the child witnesses testified on oath or affirmation. We respectfully think that if a child of tender age is not to testify on oath or affirmation, a preliminary test on whether he knew and understands the meaning of oath may be dispensed with”. Guided by the above authority, it is my firm view that there was no contravention of section 127 (2) of the Evidence Act. Concerning the credibility of PW2, the law is evident that every witness is entitled to credence and must be believed and his testimony accepted unless there are cogent and good reasons for not believing the 15 witness, which includes the facts that the witness has given improbable or implausible evidence or evidence has been materially contradicted by another witness. See the cases of Goodluck Kyando vs R (2006) TLR. Moreover, credibility is largely determined by what the witnesses say and how they present themselves in the witness box; it is based on consistency, confidence, hesitancy, demeanor, and reaction under pressure. See the case of Judi mdemu@ Nickson Mdemu vs. Republic, Criminal Appeal No 515 of2021 decided December 2024 Further, in the case of Shaban Daudi vs. Republic, Criminal Appeal No. 28 of 2000 (unreported), the court observed that; “The credibility of a witness can also be determined in two ways: one, when assessing the coherence of the testimony of that witness; Two, when the testimony of that witness is considered in relation with the evidence of other witnesses, including that of the accused person.” In this appeal, the testimony of Pw2, in my view, passed the test of credibility. The victim was firm, explaining how the accused used to sodomize him, threatening him that if he reported the matter to anyone, he would kill him. The evidence further reveals that the victim’s mother was aware that the victim discharged feces, but she was not aware of what was the cause of it. That aside, the victim is living with the accused in the same house; thus, due to the threat, it is evident that he could not 16 reveal the incident to anyone, as he was living with the perpetrator in the same place. Concerning who was the perpetrator of the crime, the victim informed the teacher and later on his parents, the police, and the court that it was the accused who sodomized him. In my profound view, PW2 was a credible and reliable witness. Thus, this ground also lacks merit, and it is bound to fail. Next is the third ground, which is the condensation of the former grounds three and six, which state that the learned trial magistrate grossly erred in law and fact to convict the appellant on the Pw1 ’s and Pw2’s evidence, which were improbably or implausibly inconsistent and contradictory. He cited the case of Aloyce Maridadi vs. R, Criminal Appeal No. 208 of 2016 (unreported). The CAT demonstrated thus: “Good reason for not believing a witness include the fact that the witness has given improbable or implausible evidence or the evidence has relatively contradicted by another witness or witnesses.” He submitted that PW and PW2’s evidence was barely insufficient to stand and establish the appellant’s conviction. This is because the evidence from PW1 and PW2 contained contradictions. He lamented that PW1 told the court that PW2 could not control his urine and feces, the evidence which was contrary to that of PW4 and PW5 because the 17 evidence that PW1 adduced before this trial court was copied from PW5’s observation and PW1 did not inspect PW2 then there is no way he can come out with different version from that of PW5. He was insistent that prosecution evidence was hearsay. He stressed that the record shows that when Dw1 cross-examined PW2, he told the trial court that it was confirmed that, before naming the appellant, he had mentioned three classmates who had done that act. “Those mates are Yunusi, Sharifu, and Sayidin, but they did not sodomize him. Rather than caressing him and hugging him from behind.” Regarding the evidence of PW5, he said neither she nor PW1 had witnessed PW2 discharging urine and feces unnoticed. Thus, the piece of evidence that Pw1 adduced, that PW2 was discharging urine and feces unnoticed has no standing because, even in the meeting conducted between Pw5, Pw2, and his father, PW1, none of them discussed Pw2 discharging feces and urine unnoticed. He went on submitting that, as per PW1’s, PW2’s, and PW5’s evidence, when PW5 called Pw2, PW3 told PW5 that Baba Ozil sodomized him, and when Pw2’s father came the next day, he said Baba Ozil is also known as Mbegu. He contended that the different names, as reflected in one Mbegu Germans and Baba Ozil, could not be the same person since there was no evidence or reasonable proof that reflected the appellant; 18 likewise, PW1 and PW2 both mentioned Mbegu and Baba Ozil. Thus, these names are not in the charge. In winding up, he said the same should be resolved in the appellant’s favour. He submitted that Pw1’s and Pw2’s evidence was improbable because, if it were not to tell the appellant the truth about the incident or to make him aware, then why did they not take him to the police station until the next day, as PW1 told the court? He contended that, given the incident had occurred more than two years prior, when Pw2 was experiencing such pain, it defeats reasoning why the parents failed to act immediately by taking the appellant to Buguruni police station but waited until the next day. In rebuttal, Ms. Magiri Started by citing the case of Awadhi Abrahamani Waziri vs. R, Criminal Appeal No. 303 of 2024 (CAT), where it was held that it is a trite law that where evidence is inconsistent or contradicted, it cannot be relied upon. She submitted that the evidence on whether the victim could not control urine or stool is not one of the ingredients of the offense charged; hence, any omission or contradiction, if any, does not dent the prosecution case as the ingredient of the offense under section 154(1)(a) of the Penal Code. She was of the view that the trend of evidence is apparent that PW2 told the court that it was the appellant who sodomized him; her mother inspected him and found the 19 same, and he informed PW1, the father. Her mother had noticed that her son had been discharging stool uncontrollably, and at school, they had witnessed the same. In conclusion, she stated that the issue of contradiction in this case was still minor and could not undermine the prosecution's case. She implored the court to disregard this ground. I have dispassionately considered the fighting arguments by the parties herein. I have no query with the appellant's contention that the existence of contradictions and inconsistencies in the evidence of a witness is the basis for finding a lack of credibility. Nevertheless, contradictions by any particular witness or among witnesses cannot be avoided in any specific case. Thus, the discrepancies must be sufficiently severe, and matters relevant to the adjudged issue must be considered to warrant an adverse finding. See the case of Dickson Elia Nsamba Shapwata vs. Republic, Criminal Appeal No. 92 of 2007 (unreported). In that case, the Court observed that, regularly, everyday contradictions or discrepancies occur in the testimonies of witnesses due to standard errors of observation or errors in memory resulting from the lapse of time or mental disposition, such as shock and horror at the time of the incident's occurrence. The Court added that a material contradiction or discrepancy is not typical of an average person and that courts must 20 determine the category to which a contradiction, discrepancy, or inconsistency could be characterized. On the premises, the Court had this to say; “minor contradictions, discrepancies, or inconsistencies which do not go to the root of the case for the prosecution cannot be a ground upon which the evidence can be discounted, and they do not affect the credibility of a party's case.” In the case of Said Ally Saif vs. R. Criminal Appeal No. 249 of 2008 (unreported), the court had this to say: "It is not every discrepancy in a prosecution case that will cause the prosecution case to flop. It is only where the gist of the evidence is contradictory that the prosecution case will be dismantled. Minor contradictions and inconsistencies on trivial matters that do not affect the prosecution's case should not be made a ground on which the evidence can be entirely rejected”. As can be depicted from the above authority, it is apparent that minor contradictions and inconsistencies in trivial matters that do not affect prosecution should not be grounds for rejecting the evidence in its entirety. With the above understanding, I will determine whether the appellant's alleged contradiction goes to the root of the matter. 21 Based on the facts of this case, I find that they are not. The reasons I so hold are not far-fetched; as per records, PW2 narrated how the appellant sodomized him and threatened to kill him if he revealed the ordeal to anyone. Furthermore, he recounts the story of discharging feces unnoticed and how he subsequently revealed the act to his teacher. Examining the evidence of PW5, one can see that the threat affected the child, making them reluctant to reveal the act. Moreover, the accused was known to the victim, as they lived in the same house; thus, Pw2 was aware of the perpetrator of the act. That aside, the victim was taken to the hospital, and as per the PW4s report, the victim's anus was wide. To me, the issue as to whether both Pw1 and Pw5 witnessed Pw2 discharging urine and feces unnoticed or not is immaterial since pf3 proves that the victim’s anal path is loose and thus sodomized/ the same proves penetration. Similarly, the issue of why the appellant was not arrested on the same date Pw1 reported the matter to the police station, in my view, is immaterial, as the records are unambiguous that he was arrested the next day after the victim was examined. Concerning the issue of names, the appellant did not cross-examine the witness during the trial; thus, his allegations are considered an afterthought. Having so find, this ground is also destitute of merit and therefore dismissed forthwith. 22 Next is the fourth ground of appeal, where the appellant laments that the learned trial magistrate grossly erred in law to contravene section 192(3) of the Criminal Procedure Act. He argued that the record from 15.5.2023 to 30.4.2024 did not show that when the prosecution was called to determine the matter not in dispute, the court failed to direct itself to the provision of section 192(3) of the Criminal Procedure Act. He submitted that the law provides that “after the preliminary hearing held under this section, the court shall prepare a memorandum of the matter agreed and explain to the accused person in language that he understood. Signed by the accused and his advocate, if any, and by the public prosecution and then filed.” He lamented that, according to the court record, the memorandum of disputed facts was not recorded during the preliminary hearing, and the signatures of the state attorney and the appellant are not visible in the record; therefore, the provision of Section 192(3) of the CPA Act was not complied with. He was of the view that this omission is fatal, as it denies the accused knowledge of the disputed facts of the case, thereby hindering their ability to prepare a defense. He had the view that, since Section 193(3) of CPA is a mandatory requirement, the omission of the compulsory procedure above amounts to the preliminary hearing being nullified. 23 In contrast, the respondent’s submission was that on page one of the proceedings at court Coram, dated 16th August 2023, it is stated that the case was fixed for a preliminary hearing; however, the records of when this was done are missing. She submitted that the proceedings are not in chronological order, which suggests that some records are missing. However, if the court decides to treat it as if it was not conducted, it is our submission that failure to observe it is not fatal, as it can be cured by Section 388 of the Criminal Procedure Act. She was firm that, from the settled case law in this jurisdiction, a trial of a case would not be vitiated for failure to conduct a preliminary hearing. She placed reliance on the case of Bernald Masumbuko Shio v. Republic, Criminal Appeal No 123 of 2007(unreported). She prayed for this court to find this ground lacking merit. I hasten to say that this point need not detain this court. This is because the law is clear on the purpose of a Preliminary hearing, which is to expedite the trial, not to prove the case. This is well stated under Section 192(2) of the Criminal Procedure Act, Cap 20, R.E. 2019. For easy reference, section 192 (1) is quoted here under; “Notwithstanding the provisions of sections 229 and 283, if an accused person pleads not guilty, the court shall, as soon as is convenient, hold a preliminary hearing in open court in 24 the presence of the accused and his advocate (if he is represented by an advocate) and the public prosecutor to Consider such matters as are not in dispute between the parties and which will promote a fair and expeditious trial”. (Emphasis added). From the wording of the above provision, it is apparent that failure to conduct PH properly does not prejudice the accused in any way. Therefore, although in this case, the proceedings do not reveal that PH was performed, this does not vitiate the entire proceedings. Thus, this ground is also dismissed for want of merit. In the fifth round, the appellant contended that the trial magistrate grossly erred in law and fact to convict the appellant on the Pw4’s evidence and did not furnish the court with the necessary scientific criteria for testing the accuracy of their conclusion to enable the court to form the independent judgment. He submitted that the evidence on record shows that PW4, a clinical officer, examined PW2; however, she did not establish how she conducted the examination. According to him, the mere statement that she examined PW2 and found that he was sodomized was not enough. He had the view that, as an expert, the prosecution was required to lead Pw4 to show the court how she did the physical examination and establish that PW2 was sodomized. He supported his stance by citing the case of Sylvester Stephano vs R Criminal Appeal 25 No.527 of 2016 CAT Arusha (unreported) He added that Pw4 testified that he works at Buguruni Health Center. At the same time, Pw1's evidence indicates that they took Pw2 to the Plan Vingunguti dispensary, while Pw2's evidence suggests that they took him to the Plan Hospital dispensary. To him, the evidence of PW1, PW2, and Pw4 was incredible in convicting the appellant. In conclusion, he submitted that Pw4, a Medical Doctor, did not provide his Doctorate Practicing registration number, which is crucial to confirm that he is a licensed practitioner. In rebuttal, Ms. Magiri contended that PW4 did his work as an expert and confirmed that the victim was sodomized; she tendered the PF3, which clarifies further the findings of his examination. She submitted that this ground lacks merit and should be disregarded. I have carefully examined the arguments raised by the appellant and the state attorney, and I have also critically reviewed the trial Court records and the case laws relied upon to establish the merit of this ground. In my view, this ground need not detain me. Examining the proceedings managed by the e-CMS, it is evident that PW4 did not provide the court with the necessary scientific criteria. However, she did her job as required and concluded that the victim was sodomized. To me, the issue as to how PW4 conducted the test is immaterial at this juncture. Furthermore, the 26 accused never cross-examined her on this account. Thus, his allegations become an afterthought. Regarding the contradiction over which hospital the victim was examined, the evidence of Pw4 and the PF3 both indicate that the victim was examined at Buguruni Health Centre. Thus, the appellant's allegations on this ground are baseless. In the sixth round, the appellant argued that the learned trial magistrate grossly erred in Law and fact for failure to draw an Adverse inference to the prosecution for failure to call vital witnesses who could fill in the gap in their evidence. It was his submission that the learned trial magistrate failed to draw adverse inference to the prosecution evidence for failing to parade material/vital witnesses who could fill in the gap, such as who exactly sodomized Pw2, whether it is true that they were living in the same house and whether Pw2’s mother inspected the victim. He added that the evidence on record shows that before Pw1 and Pw2 mentioned Mbegu and Baba Ozil, PW2 mentioned Yunus, Sharifu, and Sajidin. Yet, they were not interrogated or called by the prosecution to testify before this Court on whether the allegations made by Pw2 against them were true or not to ensure a fair trial and to procure justice. He went on to submit that the prosecution case was invented by Pw5 Adeline Jacob Maro, who Mwl gave information. Lyamuya informed her that Pw2 was discharging feces without notice. Pw5 made a call to 27 Pw2’s mother, who consented that PW2 discharged feces because his anal path was abnormally wide. He contended further that the evidence of PW1 and PW2 shows that the appellant is a landlord’s son, and they used to live in the same house; however, none of the prosecution witnesses testified to this effect. He believed that the prosecution's failure to call that material left a lot to be desired, and the omission cast doubt on the prosecution's case. He thus prays to the court to resolve the doubt in favor of the appellant. In reply, the respondent's submissions were that, in terms of Section 143 of the Evidence Act Cap 6 [R.E. 2022], no particular number of witnesses was required to prove a certain fact. Having considered the above submission, I wish to point out that this ground does not detain me for long. As rightly submitted by Ms. Magiri, as per section 143 of the Evidence Act (Cap 6 R.E 2022), what matters is the quality of evidence and not the number of witnesses. Furthermore, as to who should testify, it is entirely the prosecution's discretion to decide, not the accused person's; the only exception is when the witness is a material one whose absence leaves evidential gaps in the prosecution's case. See the case of Yankami Idd or Alfan Idd @ Nyanzabara vs Republic, Criminal appeal No. 249 of 2019 [2023] TZCA (Tanzlii at page 11). As to who qualifies or is said to be a material witness, 28 the answer is found on pages 21 - 22 of the decision of the Court of Appeal in George Jonas Lesilwa vs. Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (16 April 2024) TanzLII where it was stated that: "...According to the applicable literature and jurisprudence, a material witness is a witness who can testify about matters having some logical connection with the consequential facts, especially if few others, if any, know about these matters. (See Black's Law Dictionary 8th Ed. Page 1634). Generally, the information the material witness possesses has a strong probative value, and very few, if any witness, possess the same information. It should be needless to say, at this juncture, that probative value is the probability of evidence to reach its proof purpose of the fact in issue..." Applying the principle stated in the above authority to the circumstances of this case, I am of the view that the witnesses mentioned by the appellant were never material witnesses. In this case, since the victim’s friends, Yunus, Sharifu, and Sajidin, were not material witnesses, there was no need to summon them to testify. Therefore, this ground is also bound to fail for want of merit. Lastly are the seventh and eighth grounds of appeal, in which the appellant contends that the learned trial magistrate grossly erred in both 29 law and fact in convicting the appellant, as the defense evidence raised a reasonable doubt about the prosecution's case. He contended that when cross-examined by PW1, PW2, and PW4, the record shows that PW4 was required to show how she conducted a physical examination to establish that PW2 was sodomized. He said the prosecution failed to clear doubt if it was confirmed that Yunus, Sharifu, and Sajidin, who were the victim’s classmates, were caressing or sodomizing PW2. He was insistent that there was no prior information to show that PW2 denied that his classmates did not sodomize him until the appellant cross-examined him. He implored the court to resolve the doubt in favour of the appellant and allow the seventh ground to sail through. Regarding the eight grounds, the appellant contends that the case was not proved to the hilt as the evidence of PW2 lacks essential details to prove precisely that it was the appellant who sodomized him. He submitted that Pw2 testified that the incident occurred between 2021 and 2023, and his mother was taking him to prayers. He contended that the victim and his family were living together, and in normal circumstances, a standard two-student household would have his mother taking care of him before he went to school. According to him, it defeats reasoning that neither PW2’s mother nor PW1 was aware of what was happening. He added that Pw1 did not inform the court, nor did he mention that PW2 30 was taken to prayer; yet, the prosecution failed to explain when Pw1 divorced PW2’s mother and when exactly PW2 shifted to Kihangu Primary School. He added that the prosecution witness did not give any reason why PW2’s parent did not report this matter to the police from 2021 to 2023. The record shows that when Pw2’s mother was called to Pw2’s school, she came immediately after PW5 directed her to check her son and found that his anal was abnormally wide. He argued that a nine-year-old Standard II student could remain silent about the ordeal and, when speaking out, mention anyone that came to mind. To him, it was wrong for the court to believe that PW2’s evidence was credible enough to convict the appellant; he requested that this court discredit PW2’s evidence because it was incredible. In conclusion, I respectfully request that the court consider and hold that this appeal has merit, set aside both the conviction and sentence, and release the individual from prison. In reply, it was the respondent’s submission that it is clear from the evidence the defense was disassociated and incapable of compromising the prosecution case. She insisted that, in criminal cases, the case is proved on the strength of the prosecution's case, not on the weakness of the defense case; the defense must only cast doubt on the prosecution's case. She went on to submit that, based on the evidence in this case, no 31 doubt is cast by the defense. She was of the view that the prosecution did prove the case beyond reasonable doubt as there is evidence of PW2 corroborated by PW4 that he was penetrated against the order of nature. The appellant was a person known to the victim, thus well identified, and PW2 and other witnesses gave evidence in compliance with the law. They were all credible and reliable witnesses. In line with the above submission, it was her prayer that this court finds no merit in this appeal and dismisses it entirely. I have carefully considered the submissions by both parties and the lower court record, which I have reviewed. In the instant appeal, the record is evident that the victim narrated how the act of sodomy was commissioned to him by the appellant and that they used to live with the accused in the same house as the landlord’s son. He also expressed how he was threatened not to reveal the act; otherwise, he would be killed. In my profound view, it was those threats that made the victim refrain from telling his parents about the awful act. Indeed, the victim was in dilemma whether to reveal the truth or not as he was in a threat of being killed, which is why it was difficult for him to mention the appellant even before his teacher. Under the circumstances, the allegations that the victim did not name the suspect at the earliest stage become baseless. 32 That aside, examining the PW2 evidence, nothing suggests that his testimony concerning the incident and subsequent events lacks credibility concerning his proof. His proof was substantial regarding the incident and who was responsible for it. On being cross-examined, PW2 was consistent that it was the appellant who sodomized him. Bearing in mind that, in molestation offenses, the victim's evidence is the best as per the case of Selemani Makumba v. Republic [2006] TLR 379, in deed his evidence was credible, and that of the appellant did not shake the same. Furthermore, the evidence of the victim was corroborated by the testimony of PW4, a medical practitioner, together with exhibit P1, PF3, intensifying the prosecution that PW2 was sodomized. As to whether the victim was taken to prayers or not, that is immaterial to this case, similar to the fact when the victim moved to Vingunguti and when Pw1 divorced Pw2s mother. As to whether the defense evidence was considered, I am convinced that it was considered but found not to have shaken the prosecution's case. That said, I am satisfied, albeit based on different evidence relied upon by the trial court, that the appellant's case was proved to the required standard. Therefore, these grounds also lack merit, and it is dismissed. Accordingly, his appeal is devoid of merit, and I dismiss it in 33 its entirety. It is so ordered accordingly. H.R MWANGA JUDGE 19/03/2025 COURT: Judgment delivered at Dar es Salaam in chambers this 19th March 2025 in the presence of the appellant in person and Michael Moboko, learned State Attorney for the Respondent. MWANGA J. JUDGE 19/03/2025 34