Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 16537 OF 2024 (Arising from the decision of the District Court of Tandahimba at Tandahimba in Criminal Case No. 73 of2023) BARAKA ATHUMANI KATEMBE............................ APPELLANT VERSUS THE REPUBLIC................................................ RESPONDENT JUDGMENT ShAugust 2024 & Jd September, 2024 MPAZE, J.: On 15th October, 2023 in the evening hours, Nurudin Shafii (PW3) and Rahim Gift Makunge (PW4) were playing outside the house of the appellant, suddenly they heard the victim crying from inside the home of the appellant, curious to know what was happening the two rushed to the house in which they found the victim lying on appellant's bed naked and the appellant also was half naked. PW4 observed blood on the victim's anus and decided to take the child to their elder brother before returning to continue their players. While at his farm picking cashew nuts, Gift Samweli Makunge (PW1) the father of the victim received information that his child had been i sodomized by the appellant with a sad heart he left what he was doing and returned home while on the way he met with the appellant he arrested him and went with him up to his home he met a lot of people he took the appellant and the victim to police, PF3 was issued for the victim to be taken to the hospital. At the hospital the victim was medically examined by Said Mohamed Gwalima (PW6), who told the trial court that after his examination he observed fresh bruises and white discharge into the victim's anus, he completed PF3 which was admitted as Exhibit Pl. Neema Juma Namtongoja (PW5) is the woman who was on the way to her home when she heard the victim crying. Concerned she turned to inquire about the child's misery and upon questioning, the victim responded with "Baraka Atomba " PW5 then inspected the victim and discovered bruises and blood stains around the child's anus. She decided to stay with the child until PW1 arrived, at which point she handed over the child and returned home. The record shows that the victim's (PW2) testimony was not recorded because the victim was unable to respond to any of the questions posed by the court. 2 The evidence as summarized is what made Baraka Athumani Katembe, the appellant be arrested and charged with unnatural offence contrary to section 154(1) (a) and (2) of the Penal Code [Cap 16 R.E 2022], the particulars in the charge alleged that; 'On October, 2023 in the evening hours at Mdumbwe village within Tandahimba District in Mtwara Region, Baraka Athumani Katembe did have carnal knowledge with the victim (the name hidden to conceal her identity) aged 3 years against the order of nature'. The appellant pleaded not guilty to the charge. Despite his plea, the evidence, as adduced by the prosecution side, found him with a case to answer, in which he defended himself without calling witnesses nor tendered any exhibit. Refuting the commission of the offence the appellant informed the trial court this is a fabricated case by the victim's father with whom they have a conflict concerning the farm, where the victim's father wanted to take his farm he resisted which annoyed PW1 who told him '’utaond' and on the following day, he arrested him accusing him that he has raped his daughter the allegations which are not true. This defence did not convince the trial court to find out that the case was fabricated against him instead the trial court found the 3 prosecution case was proved to the hilt, hence found the appellant guilty of the offence, convicted him and sentenced him to life imprisonment. Believing that the trial court had not done him justice, he sought recourse by appealing to this court, challenging the trial court's decision on the following nine grounds; 1. That the prosecution side did not prove its case beyond reasonable doubt. 2. That the trial magistrate did not comply with the mandatory provision of section 127(2) of the Tanzania Evidence Act. 3. That the manner in which the proceedings at the trial court were conducted was irregular or/improper. 4. That there was no proof ofpenetration in respect of the alleged offence. 5. That the appellant has never confessed to having committed the alleged offence. 6. That the trial court failed to examine, evaluate and analyse evidence on record. 7. That, the corroborative evidence used by the trial court to find a conviction was not concrete. 4 8. That, the stages ofadmitting documents were not complied with, thereby causing serious injustice on the part of the appellant. 9. That the trial magistrate did not direct his mind to the contradiction and inconsistency as to the age of the appellant. During the hearing of the appeal, the appellant was unrepresented whereas the Republic was represented by Mr. Edson Mwapili the learned State Attorney. When invited to argue the appeal, the appellant informed the court that he was unaware of the content of the grounds of appeal, as he had not authored them. He requested the court to read them aloud to him first. Without hesitation, the court complied and read the grounds as requested by the appellant. After all of them being read out, the appellant informed the court that after he had heard the grounds of appeal he had nothing to add he asked the court to adopt them and make as part of his submission while insisting the court quash the decision of the trial court and set him free. Opposing the appeal Mr. Mwapili State Attorney, argued the 1st, 4th, 5th and 7th grounds of appeal collectively as he said they all focus on challenging the failure of the prosecution to prove their case beyond reasonable doubt. 5 Submitting on the issue of whether the prosecution's case was proven beyond a reasonable doubt, Mr. Mwapili argued that the prosecution had the burden of proving two key elements; first, that penetration occurred, and second, that it was the appellant who committed the act. He maintained that the prosecution successfully discharged this duty through the testimony of the witnesses who appeared and provided their evidence. Showing that penetration was proved the State Attorney referred the evidence of PW3, PW4, PW5 and PW6 where he said, PW5 examined the victim's anus and found bruises which indicated that there was penetration, the evidence which he said was confirmed by the Doctor (PW6) who examined the victim who also stated that after examination he observed that the victim was penetrated as he observed the anus had bruises, he referred the court to page 36 of the typed proceeding. Other evidence which proved penetration according to him is that of PW3 and PW4 who testified to have seen the appellant and the victim in the appellant's bed while the victim was naked and the appellant was half naked. He said this evidence also proved that it was the appellant who committed the offence. He alerted the court that this evidence is available on pages 29 and 30 of the typed proceedings. 6 Mr. Mwapili asserted that he is aware of the position of law that in sexual offences true evidence of rape must come from the victim, he said, in this case, the victim failed to testify due to his young age (3 years), and the trial magistrate recorded the reason as to why he failed to record the victim evidence, he referred to page 29 of the typed proceedings. Mr. Mwapili added that in the case of Raphael s/o Peter Vs DPP (Criminal Appeal No. 268 of 2020) [2024] TZCA 185 (18 March, 2024), Criminal Appeal No. 267 of 2020, where the trial court failed to record the evidence of a child the Court said the record should speak for itself for such failure, which he said in the current case the records show the same. Concerning the complaint that the appellant has never confessed to the offence, Mr. Mwapili argued that the failure of the appellant to confess does not mean that the appellant did not commit the offence, he said with the available evidence despite his lack of confession they were able to prove that it is the appellant who committed the offence against the victim. Turning to the 2nd ground of appeal where the appellant faults the trial court for not complying with section 127(2) of the Evidence Act [Cap 6 R.E 2022] (TEA), Mr. Mwapili argued that despite the appellant not specifying to which witnesses exactly was referring that his evidence was 7 not taken in compliance with section 127(2), Mr. Mwapili assumed that the complaint touches the evidence of PW3 and PW4 who were children of tender age. Mr. Mwapili argued that if the appellant meant to challenge the evidence of these two witnesses he was of the view that the complaint was baseless as looking at the proceeding of the two witnesses before their evidence was taken they both promised to speak the truth, the only thing which was missing according to the State Attorney is the indication of the trial magistrate that section 127(2) complied with, which he said the same can be cured with section 127(7) which was added through the Legal Sectors Laws (Miscellaneous Amendment) Act No. 11 2023, which says the evidence which was recorded not in compliance with section 127(2) shall not be inadmissible. Hence found this ground is lacking. Regarding the 6th ground where the appellant complained that the trial court failed to examine, evaluate and analyse the evidence, the State Attorney opposed the ground by saying that the trial court examined, evaluated and analyzed the evidence, however, he alleged that if at all it will be found that the trial court did not do that, then this court being the first appellate court should step into trial court shoes and do the analysis. 8 Moving to the 8th ground which challenges the admissibility of Exhibit Pl. Mr. Mwapili submitted that the only Exhibit which was tendered is the PF3 which before tendering the witness laid the foundation, he then prayed to tender it in which the appellant had no objection, the same was admitted and marked, and then was read out. The State Attorney insisted the procedure for admission of this Exhibit was adhered to. On the 9th ground where the appellant challenges the trial court for failure to see that there was an inconsistency of the appellant's age, Mr Mwapili argued that there was no such inconsistency, he said the charge which was ready against the appellant indicated that the appellant was 19 years, also during Preliminary Hearing among the undisputed facts was the age of the appellant, he said the act of the accused stating his age to be 17 years during defence cannot be termed as there was the inconsistency of the accused age, to him he considers that defence regarding the age is an afterthought. For all that he has submitted Mr. Mwapili concluded that on their part they supported the conviction and the sentence passed to the appellant seeking this court not to interfere. In his short rejoinder, the appellant insisted that he had never committed the offence he prayed to be acquitted. 9 Looking at the grounds of appeal and the submissions made by the State Attorney, I find I am obligated to address three issues, which will encompass all nine grounds of appeal. The first issue will be of procedural irregularity which will focus on answering grounds 2, 3, 5, 8 and 9 of the appeal, The second will be the issue of whether the prosecution managed to prove the case beyond reasonable doubt which will take into board ground 1, 4, and 7 and last is the issue of examination, evaluation and analyzation of evidence which will carry ground 6. Starting with ground 2, where the appellant complains that the trial court failed to comply with the mandatory requirement of section 127(2) of the TEA, in this grievance, as submitted by Mr Mwapili, the appellant was not specific about which witness testimony the court failed to comply with section 127(2). However, upon examining the trial court proceedings, I discovered that the witnesses whose testimonies were supposed to be taken per section 127(2) were PW2 (victim), a child of 3 years; PW3, a child witness of 8 years; and PW4, a child of 6 years. Having identified these witnesses whose testimonies were to be taken in compliance with section 127(2), I examined each testimony to io determine if they were taken following the requirements of section 127(2). Starting with PW2, the records indicate that after this witness arrived in court, her testimony could not be taken as she did not respond to any of the questions posed to her. This is how it is reflected in the records; W Victim, 3yrs, QN: where do you worship ANS: NIL QN: Do(sic) you tell us truth ANS: NIL COMMENT: This witness is too young to the extent that she cannot respond to the question put upon to her. Hence I fail to take her evidence. Signed SRM' In the case of Haji Omary v. R (Criminal Appeal No. 307 of 2009), [2015] TZCA 313 (30 September, 2015), the Court of Appeal held that if the testimony of a child witness cannot be taken, the reasons for not recording the victim's testimony should be entered into the record. In that case, even though the reasons for not taking the evidence were not ii recorded, the Court still found that this omission neither weakened the prosecution's case nor resulted in a miscarriage of justice. Returning to the case at hand, the court recorded the reasons for not taking PW2's testimony. However, the trial magistrate mistakenly used the word "Comment' when giving the reasons instead of "Court'. While this error is noted, it did not cause any injustice. Therefore, I will proceed, as the reasons for excluding the victim's testimony were properly stated. Therefore, since the court provided reasons for its inability to take PW2's testimony, I cannot conclude that section 127(2) was not complied with. As for PW3 and PW4, before their testimonies were taken, the required procedure was followed, and both promised to speak nothing but the truth. However, similar to PW2, the trial magistrate wrote "Comment instead of "Court', as I have already explained above, this does not mean that the testimonies of PW3 and PW4 were taken contrary to section 127(2) of the TEA. As the State Attorney submitted, I agree with him that the procedure for taking the testimony of children of tender age, as 12 outlined in section 127(2), was complied with. Therefore, I find this complaint to be without merit. Another complaint relates to the claim that the manner in which the proceedings at the trial court were conducted was irregular and improper. This complaint was not elaborated by the appellant, and neither did the State Attorney submit anything concerning this issue. Despite the lack of explanation, I took the time to examine the trial court proceedings to determine whether there was any procedural irregularity in the manner in which the proceeding was conducted. Upon examining the records, I found that the appellant was first brought to court on 18th October, 2023. As is customary when an accused is first brought to court, the charge must be read to them. This was done, and the charge was read to him in a language he understood. He responded, 'I did not commit the offence,' prompting the court to enter a plea of not guilty. Following this, the court granted the appellant bail conditions; however, as he did not have sureties, the case was adjourned to a later date for the Preliminary Hearing(the PH) and the appellant was ordered to remain in custody. 13 On the 9th of November, 2023 the PH was conducted, and section 192(3) of the CPA was fully complied with. The case proceeded with the hearing on the same day where the testimonies of PW1, PW2, PW3, and PW4 were heard continuously. As I have mentioned earlier, PW2, PW3, and PW4 were witnesses of tender age save for PW2 whose evidence was not recorded PW3 and PW4's testimonies were taken under section 127(2). Likewise, section 210(1) of the CPA was also complied with in recording witnesses' evidence. However, I will pause here to note something I observed; the records show that the testimonies of PW1, PW2, PW3, and PW4 were all taken on the same day. After taking PWl's testimony, the trial magistrate signed and indicated that section 210(3) of the CPA of 1985 had been complied with. As for PW2,1 have already discussed this earlier. When the trial magistrate took PW3's testimony and completed it, he neither signed nor indicated whether section 210(3) of the CPA (Cap 20 R.E 2022) was complied with. However, he proceeded to take PW4's testimony and signed, endorsing that section 210(3) of the CPA of 1985 was complied with. 14 The issue to address is whether the failure to sign and indicate compliance with section 210(3) of the CPA 2022 could impact PW3's testimony. The resolution to this issue is provided in the case of Hando Dawido v. R (Criminal Appeal No. 107 of 2018) [2021] TZCA 719 (2 December, 2012). It was observed in that case that the testimonies of PW1, PW2, and PW3 were taken on the same day. The trial magistrate signed after recording PWl's testimony, failed to sign after PW2's, but signed after PW3's, and again at the end of that day before adjourning. When the trial resumed about a month later, the magistrate continued with the testimonies of PW4 and PW5 but did not sign immediately after recording them, instead signing at the end of the day. The court found that the omission to sign immediately after PW2's, PW4's, and PW5's testimonies were not fatal, as the records showed a signature at the end of each day. To illustrate this point, the court stated; \. since the trial magistrate affixed her signature after recording the evidence of witnesses on the same date they testified and after the closure of court business on the particular date, it cannot be said that the evidence of those three witnesses lacked authenticity' Guided by this authority, although the trial magistrate did not sign immediately after recording the evidence of PW3, it cannot be said that 15 the recorded evidence was not authentic because the magistrate signed at the end of the day before adjourning the trial. Not only that, but also when examining the handwritten proceedings for that day, it is evident that PW4's testimony immediately followed PW3's. Even if one were to argue that the lack of a signature after PW3's testimony undermines the authenticity of the evidence, such an argument would be contrary to the sequence of events. Furthermore, the appellant was not prejudiced, as he had the opportunity to cross-examine the witness. Taking all this into account, the trial magistrate's failure to sign PW3's testimony and indicate compliance with section 210(3) does not lead me to conclude that the proceedings were conducted irregularly. After all, the person who should have raised a complaint under section 210(3) is the witness whose testimony was not recorded, not anyone else. Even if I were to consider that the CPA cited was the 1985 version rather than the 2022 version, I still find that there was no irregularity. The trial magistrate adhered to the relevant provisions, ensuring that the procedure was correctly followed. There is no evidence suggesting that the incorrect citation of the year caused any injustice to the appellant. 16 What is clear is that the rights of the parties were not compromised by the incorrect citation of the year. Aside from PW1, PW2, PW3, and PW4, whose testimonies were recorded on the same day, the records show that PW5's testimony was taken on 9th October 2023 and PW6's testimony was recorded on 15th October, 2023. The procedure for recording these testimonies was conducted in accordance with the law. The prosecution closed their case, and on the 20th October, 2023 the ruling on the case to answer was delivered against the appellant. He was informed of his rights as outlined under section 231(l)(a) and (b) of the CPA, where the appellant responded that he would defend himself under oath and call no witnesses. On the 10th November, 2023 the appellant made his defence, and the procedure was duly followed. Afterward, a date for the judgment was set, and subsequently, on the 15th November, 2023 the judgment was delivered. Based on what I observed in the record, there was no procedural irregularity in the proceedings that could have resulted in injustice. Therefore, I find this complaint to be without merit. 17 Another procedural irregularity raised by the appellant is that the stages of admitting the Exhibit were not complied with. As submitted by the State Attorney, the only document admitted as an Exhibit in this case was a PF3. The records show that PW6, the doctor who medically examined PW2, is the one who tendered this Exhibit. Before tendering it, he laid the foundation, after which he prayed for the Exhibit to be admitted. The appellant was asked if he had any objection, and he responded that he had no objection. Consequently, the Exhibit was admitted and marked as Exhibit Pl. After admission, the contents were read and explained to the accused and the court. This procedure aligns with the required standard, indicating that there were no flaws in the admission of Exhibit Pl. Thus, this ground is also unfounded. The appellant also faults the trial magistrate for failing to consider the issue of inconsistency regarding the appellant's age. I do not find it necessary to dwell on this complaint for long. As Mr. Mwampili argued, when the charge sheet was read to the appellant, it indicated that the appellant was 19 years old. 18 During the PH, one of the undisputed facts was the appellant's age, which he admitted was 19 years. It was only during the defence that the appellant claimed to be 17 years old. Therefore, the appellant bringing up the age of 17 during his defence does not create an inconsistency in his age; rather, I see it as an afterthought, as the State Attorney submitted. Hence, I dismiss this complaint. Another complaint is that the appellant criticizes the trial court for finding him guilty despite he did not confess to committing the offence. The State Attorney submitted that the absence of a confession does not negate the fact that the appellant committed the offence. The basis of this complaint is ambiguous, as the record clearly shows that the appellant was not convicted and sentenced due to any confession. Instead, the case proceeded to a full trial following his denial of the charge, resulting in a conviction after a comprehensive examination of the evidence. Accordingly, this ground is without merit. After considering the grounds challenging the alleged irregularities, I now proceed to address the ground raised by the appellant, alleging that the prosecution failed to prove the case beyond a reasonable doubt. This pertains to grounds 1,4, and 7, where the appellant contended that there 19 was no proof of penetration and that the corroborative evidence relied upon by the trial court to convict and sentence him was not concrete. Mr. Mwapili vehemently opposed this claim, arguing that the prosecution proved its case beyond a reasonable doubt. He stated that in the charge against the appellant, the prosecution's duty was to establish two key elements; penetration and that the appellant was the person who committed the offence. Mr. Mwapili argues that both of these elements were established through the testimony of witnesses PW3, PW4, PW5, and PW6. He further added that, despite the victim being the key witness in sexual offence cases, the absence of her testimony did not undermine the prosecution's case. He cited the case of Raphael Peter v. DPP (supra) to support this argument, emphasizing that the witnesses who testified were able to prove the charge. I concur with Mr. Mwapili that the prosecution's primary obligation was to prove the element of penetration and establish that the appellant, and no one else, was responsible for it. Additionally, the victim's age needed to be proved for sentencing purposes. The trial court records show that the victim's testimony could not be taken due to her young age and inability to articulate herself. However, 20 the testimony of PW6, who examined the victim, provides sufficient evidence to confirm that the victim was under 18 years old. Therefore, I do not doubt that her age was established. Continuing with the issue of penetration, as the prosecution has argued, and consistent with the stance of various case law, the best evidence in sexual offences comes from the victim. See the cases of Selemani Makumba v. R, [2006] TLR 379, Joseph Leko v. R (Criminal Appeal No. 124 of 2013) [2013] TZCA 327(6 December, 2013). In this case, it was observed that the victim did not testify. The State Attorney argued that this omission is not detrimental, citing the case of Raphael Peter v. DPP {supra). Upon thoroughly reading this case, it is noted that one of the complaints in that appeal was the appellant's contention that the prosecution's failure to procure the victim was an issue. To grasp what was discussed in that case, and given that the court cited other cases when addressing this issue, I find it prudent to quote the case in detail to provide a clearer understanding. The case resolved the complained issue as follows; ' understood the appellant as arguing that the failure to call the victim as a witness was fatalas in sexual offences the best evidence 21 comes from the victim. It is indeed the position of the record of the trialproceeding that the victim was not amongst those who testified for the prosecution case. It is however on the record that the victim was brought to the trial court in the course of the proceedings whereby it was established that the victim due to his tender age could not testify. According to the learned Senior State Attorney the failure to procure a victim of sexual offence as a witness, as was in this case at the trial, is not necessarily fatal to the trial proceeding, neither does it render a relevant charge unproved, since the evidence adduced by PW1 and PW3 whose credibility was not dented was quite sufficient to ground the conviction as was found by the two lower courts. He relied on Issa Ramadhan v. Republic, Criminal Appeal No. 409 of2015 (unreported) where this Court dealt with a similar complaint and in resolving it, the Court held that conviction can properly be sustained independent of the evidence of the victim. In that case, this Court was guided by the position we took in our earlier decision in Haji Omary v. Republic, Criminal Appeal No. 307 of2009 (unreported) where we held that, The law recognizes that there are instances where charges may be proved without victims of crimes testifying in court. Take murder for example where the victims are deceased. Senility, tender age or disease of mind may prevent a victim from testifying in court (see section 127 of the Evidence Act) but this does not mean that a charge sheet cannot be proved in the absence of the victim's testimony. 22 In this case, the victim was a four year old child. He was indeed a child of tender age. Though we agree that ideally the reason for the non-taking of the testimony of the victim should have been entered on record however such failure neither weakened the case for the prosecution nor resulted in a failure ofjustice". In the light of the foregoing, we find the appellant's complaint that the case against him was not proved because the victim did not testify to be misconceived and baseless. After all, as per the guidance emerging from the above-cited case of Haji Omary (supra), the non-taking of the testimony of the victim due to his tender age, which was not objected to by the appellant, is evident in the record of the trial proceeding as alluded herein above. Indeed, what is important is the credibility of a witness and the weight of evidence. For that matter, therefore, the court can ground a conviction by relying on the evidence of a single witness if the court believes in his credibility, competence and demeanour as was clearly stated and held in Bakari Hamis Ung'ambe v. Republic, Criminal Appeal No. 161 of 2014 (unreported). Accordingly, we dismiss the complaint for lack of merit.' Upon looking at what was discussed in that case, I find that its circumstances closely mirror the current case. Although the appellant did not directly complain that the failure of the victim to testify rendered the prosecution's case unproven, his general grievance that the prosecution failed to prove their case beyond a reasonable doubt encompasses this issue. 23 Given that the legal principle is that true evidence of rape primarily comes from the victim, I have focused on this point to determine whether the victim's inability to testify could lead to the conclusion that the prosecution failed to prove the case beyond a reasonable doubt. Having now reviewed the decision in the Raphael case above, which cited several other precedents, it is evident that the victim's absence from testifying does not inherently weaken the prosecution's case. Rather, the court must assess the testimony of other witnesses to determine whether they have sufficiently established the charge. This is precisely what I intend to do in this case, guided by the issue; Even without the victim's testimony, does the evidence provided by the other witnesses sufficiently prove the element of penetration? Examining the records, I encountered the testimony of PW5, who stated that while on her way home, she heard the victim crying out loudly. Concerned, PW5 decided to return and inquire about what had happened. The victim told her,'Baraka Atomba! PW5 inspected the victim's private parts and observed white discharge and blood stains in the victim's anus. In addition to this testimony, there is the evidence provided by PW6, who examined the victim on 15th October, 2023 around 17:00 hrs PW6 testified that after the victim was brought to the hospital, he questioned 24 her, and she disclosed that someone had inserted a penis into her vagina. Upon examination, PW6 observed fresh bruises and a discharge around her anus. The findings from his examination were filled in the PF3. I have examined the PF3, which was admitted as Exhibit Pl and its contents were read and explained to both the appellant and the court. The PF3 stated the following; MEDICAL PRACTITIONERS REMARKS: 'From the information given by the child and examination done in the genital. There is an evidence of been penetration of hard and blunt object forcibly on the Ana! Area within 24 hours before attend to the Hospital.' Given this evidence, it is evident that PW2 was indeed penetrated. A question may arise as to how PW5 and PW6 could testify that the victim was able to describe the incident of penetration to them, yet could not speak when brought before the court. It is important to note that some adults also fear appearing in court and giving testimony. Thus, it is not surprising that a three-year-old child might find it difficult to testify in court. The intimidating courtroom environment, including unfamiliar faces, the formal setting, and possibly even the presence of the perpetrator, can evoke fear, making it difficult for the child to speak and remain silent. 25 Therefore, based on the credible evidence provided by PW5 and PW6, which I find no reason to doubt, it is clear that the act of unnatural penetration against the victim has been sufficiently established. Expanding on the issue of identifying who committed the act against the victim, I examined the testimony of PW3 and PW4. These children, who were playing near the appellant's house, both testified that they heard the victim crying loudly from inside the appellant's house. They immediately ran to the scene and found the victim lying on the bed, naked, while the appellant was partially naked. They took the victim and removed her from the house. PW5 also testified that when she asked the crying victim what had happened, the victim responded,"Baraka Atomba." In his defence, the appellant claimed that this case was fabricated due to a land dispute with the victim's father, PW1. However, when PW1 testified, the appellant did not cross-examine him, indicating that he agreed with PWl's testimony. This failure to question PW1 suggests that the appellant accepted PWl's account. Therefore, the appellant's claim that the case was fabricated by PW1 appears to be an afterthought, intended to exonerate himself from the charge. 26 The credible and reliable testimonies of PW3, PW4, and PW5 are sufficient to establish that the appellant is the one who sodomized the victim. In this claim that the case was not proven beyond a reasonable doubt, the appellant also contended that the corroborative evidence was insufficient. However, the appellant did not specify which particular evidence lacked corroboration. It is important to note that the evidence adduced in this case was substantial, with all witnesses corroborating each other's testimony. Therefore, I find this claim to be unfounded. Lastly, the complaint regarding the trial magistrate's failure to examine, evaluate, and analyze the evidence on record has been reviewed. Upon examining the judgment, it is evident that the trial court thoroughly presented the facts of the case. The court outlined the undisputed facts and addressed the disputed facts by formulating two key issues: first, whether the victim was sodomized, and second, whether the appellant was the person who committed the offence. In addressing these issues, I observed that the trial magistrate did indeed analyze the evidence, but the analysis was limited to the prosecution's case only. Even when considering who committed the offence, the magistrate did not examine the appellant's evidence at all. 27 Therefore, the examination and analysis were based solely on the prosecution's case, which was not correct. In analyzing evidence, the trial magistrate should not only summarize the evidence from both sides but also consider and evaluate the evidence presented by both parties when dealing with issues before concluding. However, as a first appellate court, I have the power to step into the role of the trial court and perform the functions that the trial court was required to but did not fulfil. When resolving the grounds of appeal I exercised the duty which the trial court failed to do by examining, scrutinizing, and analyzing the evidence from both parties. In determining the issue of who committed the offence, I have considered the appellant's defence, though I did not agree with it, as I find that the defence has not shaken or raised any doubt about the prosecution's case in any way. All said and done I find the appeal is without merit. Consequently, I dismiss it in its entirety. 28 Dated at Mtwara this 3rd day of September, 2024. Court: Judgment delivered this 3rd day of September in the presence of Mr. Florence Mbamba State Attorney for the Republic and the appellant. M.B Mpaze Judge 3/9/2024 29