Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 19698 OF 2024 (Arising from the decision of the District Court of Mtwara at Mtwara in Criminal Case No. 9061 of2023) DADI SALUM ISSA ...................................... APPELLANT VERSUS THE REPUBLIC ........... .................................... RESPONDENT JUDGMENT August & 17h October, 2024 MPAZE, J.: This appeal stems from Criminal Case No. 9061 of 2023 in the Mtwara District Court, where the appellant was charged with one count of attempting to commit an unnatural offence, contrary to section 155 of the Penal Code, [Cap 16 R.E 2022], The charge was read and explained to the appellant in a language he understood, to which he pleaded not guilty. Following his denial, the prosecution called three witnesses to establish their case. Upon the conclusion of the prosecution's case, the court determined that the appellant had a prima facie case to answer. Consequently, the appellant presented his defence, after which the court delivered its i judgment, finding him guilty of the offence. He was convicted and sentenced to 20 years' imprisonment. Dissatisfied with the decision, the appellant has lodged an appeal before this court, raising seven grounds. Upon reviewing the seven grounds of appeal, I have found that they can be categorized into three main areas; 1. Complaints regarding procedural irregularities: The appellant contends non-compliance with sections 192, 230, and 231 of the Criminal Procedure Act, Cap 20 R.E 2022, (the CPA) and section 127(2) of the Tanzania Evidence Act, Cap 6 R.E 2022 (the TEA). This complaint is reflected in grounds 1, 2, 3, and 5. 2. The appellant challenges the conviction and sentencing: He argues that the trial court erred in convicting and sentencing him when the prosecution failed to prove its case beyond a reasonable doubt. This issue is raised in grounds 4 and 7. 3. The appellant faults the trial court for not considering his defence: This complaint is found in ground 6 of the appeal. Before addressing the parties' submissions regarding the grounds of appeal, it is important to briefly outline the facts that led to the appellant's conviction and subsequent sentencing to 20 years' imprisonment 2 The undisputed facts indicate that on 19th March, 2024 the appellant was hired for a construction job by the victim's grandmother. He arrived and began working while PW2 (the victim's mother) and PW1 (the victim) were present at the house. Later, PW2 left to fetch water from a well, and upon returning, she called for PW1, bathed him, and left with him shortly after. Not long after PW1 and PW2 had left, a boda boda driver arrived, who informed the appellant that he was needed at the ward office. He went there, unaware of the issue, and was later taken to the police station, where he was informed of the accusation that he had attempted to sodomize the victim. This was the appellant’s defence, and it aligns closely with the accounts given by PW1 and PW2. PW2 stated, as the appellant did, that upon returning from the well, she called for PW1, who had been inside the house where the appellant was working. She noticed PW1 running while glancing backward and asked what had happened, to which PW1 responded that the appellant had placed his genitals against his anus. PW2 examined PW1 and found a liquid substance, bathed him, and later took him to the ward office. 3 From the accounts provided by both sides, the narratives are generally consistent, except for the allegation by PW1 and PW2 that the appellant placed his genitals against PW2's anus, which the appellant denies. Despite the appellant's denial, the trial court still found him guilty of the offence of attempting to commit an unnatural offence. One of his grounds of appeal is that section 231 of the CPA was not complied with. He contends before this court that he informed the trial court that he would have witnesses and even named them, but he was not given the opportunity to have those witnesses called. On her part, Ms. Florence, the State Attorney, argued that section 231 was fully adhered to. While she acknowledged that the appellant did inform the trial court that he would have witnesses who were not called, she contended that this could be cured under section 388 of the CPA. Upon examining the submissions from both parties regarding the complaint, I revisited section 231 of the CPA to ascertain whether the section complained was complied with or not, the section reads; '231.-(1) At the dose of the evidence supporting the charge, if the court determines that a case has been sufficiently established against the accused to warrant a defense, either concerning the offense charged or any other offense under Sections 300 to 309 of this Act for which the accused may be convicted, the court shall 4 explain the substance of the charge to the accused and inform him of his rights: (a) to give evidence, whether on oath or affirmation, on his own behalf; and (b) to call witnesses in his defence. The court shall then inquire whether the accused or his advocate intends to exercise any of these rights and shall record the response. Following this, the court shall call upon the accused to present his defense unless he opts not to exercise these fights. (2) Notwithstanding that an accused elect to give evidence not on oath or affirmation, he shall be subject to cross-examination by the prosecution. (3) If the accused, after being informed in accordance with subsection (1), chooses to remain silent, the court may draw an adverse inference against him, and both the court and the prosecution may comment on his failure to provide evidence. (4) If the accused indicates that he has witnesses to call, but they are not present in court, and the court is satisfied that their absence is not due to any fault or neglect on the part of the accused, and that they could potentially provide material evidence ifpresent, the court may adjourn the trial and issue process or take other steps to compel the attendance ofsuch witnesses.' After examining the statutory provisions, I returned to the proceedings from 10th May, 2024 when the trial court ruled on whether the appellant had a case to answer. The court concluded that the appellant had a case 5 to answer. Upon being informed of his rights following the ruling, the appellant responded; 'Z will testify under oath, and I have witnesses, including one person by the name of Manara and the victim's grandmother. ORDER: 1. Defence hearing on 21.05.2024 2.AFRIC 3. Summons to the accused's witnesses to be issued. Sgn SRM 10.5.2024' From this point in the record, it is evident that section 231(1) and (2) were fully complied with. The requirements outlined in subsections (1) and (2) were met. Since subsection (3) applies only when the accused elects to remain silent which was not the case here subsection (3) is inapplicable. The record indicates that after the appellant expressed his intention to call witnesses, the court ordered their summoning, consistent with the requirements of section 231(4) of the CPA. Furthermore, the record reveals that during the defence hearing on 21st May, 2024 the appellant provided his defence, followed by cross- examination by the State Attorney. After the cross-examination, the following was recorded; 6 'Re-examination by the accused person 'My witnesses are not necessary. That's all. ORDER: 1. Judgment on 11.06.2024 2.AFRIC Sgn SRM 29.05.2024' Upon looking the proceedings, a question arises; can it be conclusively stated that there was non-compliance with section 231 of the CPA? My answer is NO. This conclusion is based on the fact that sections 231(1) and (2) were fully complied with. Additionally, when the appellant indicated his intention to call witnesses, the court correctly ordered those witnesses to be summoned. The only issue I identified, which even after noting it does not lead me to conclude that section 231 was not adhered to, pertains to the procedure that followed the cross-examination of the appellant. The trial magistrate recorded the 'Re-examination by the accused person', which raises concern. First, I must pause here to acknowledge that the trial magistrate was at least aware of the process of re-examination for self-represented person. However, it is important to note that in numerous trial court 7 records involving unrepresented accused persons, this right to re­ examination is often overlooked, which constitutes a procedural impropriety. The TEA, through section 146 and 147 (1) (2) and (3) outlines three stages of examination; Examination-in-chief, Cross-examination, and Re­ examination. These three stages are essential to follow for every witness who appears in court to provide their testimony. The relevant sections provide; '146.-(1) The examination of a witness by the party who calls him is called examination-in-chief. (2) The examination of a witness by the adverse party is called cross-examination. (3) The examination of a witness, subsequent to the cross- examination, by the party who called him is called re-examination. Section 147(1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, and then (if the party calling them so desires) re-examined. (2) The examination-in-chief must relate to relevant facts, but cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. (3) The re-examination shall be directed to the explanation of matters referred to in cross-examination. If new matters are introduced in re-examination, by permission of the court, the adverse party may further cross-examine on those matters! 8 According to section 146(3), re-examination occurs after cross- examination and allows the party that called the witness to clarify or explain matters raised during cross-examination. In this case, it was incorrect for the trial court to record 'Re­ examination by the accusedpersori because, at the time the accused was giving testimony, he had transitioned from being the accused to being a witness. This transition is why, during testimony, an accused person moves from the accused dock to the witness dock. The proper way to record this should have been 'Re-examination ofDWl.’ It may seem surprising how there could be a re-examination of DW1 when he was self-represented. It is understood that re-examination occurs after the cross-examination of a witness called by the party for clarification or correction of issues raised during cross-examination. The question is; if DW1 is the accused, who called him? It is important to note that once an accused person is referred to as DW1 (Defence Witness 1), he is recognized as a witness. Therefore, he is entitled to re-examination after being cross-examined because he essentially becomes the witness he called himself. This is why judgments concerning an accused person who was the sole witness for his defence often state that 'he was a sole witness.' As a witness, the accused 9 retains the right to re-examine any areas where clarification may be necessary after cross-examination. This practice is grounded in the principle that a witness (even if self­ represented) has the right to correct or clarify any issues raised during cross-examination. Therefore, it is procedurally correct for DW1 to conduct a re-examination, even though he is self-represented. My brother Kakolaki J, in the case of Victor Mutasi v- CRDB Bank PLC, Civil Appeal No. 96 of 2021, stated; '...The interesting question that comes to my mind, however, is whether the appellant, who was an unrepresented party, was entitled to re-examination when he testified in court in support of his case. The answer to this legal quagmire, in my firm opinion, is yes. I view this as an understanding of the right and duty to prove his case under sections 110 and 112 of the Evidence Act. The appellant called himselfas a witness before he testified in chiefand was later cross-examined. Thus, as a party who called himself as a witness, he was entitled to the right to re-examination as defined under section 146(3) of the Evidence Act, as such a right is accorded to the party who called the Mf/f/iess.'[Emphasis added]. The question may be; how exactly does this process unfold for a self-represented witness? In the case of a self-represented accused person, the court is required to guide him through his rights. Once cross­ io examination is completed, the court must inform the witness of his right to re-examination, clearly explaining what he is allowed to do. The court should guide the unrepresented accused in this case DW1 in the following manner; 'Court: You have undergone cross-examination. If there is anything you wish to clarify concerning the questions asked during cross-examination, you may do so now. However, you should not introduce new issues. Should you raise any new matters, the opposing party will have the right to cross-examine you on those points. I now give you the opportunity to provide any necessary clarifications. DW1 Response: lam ready to make clarifications. Court: Proceed. Re-Examination ofDWl: Regarding the question I was asked about... my clarification is... As for the other question...' However, if the self-represented person has nothing to clarify, the court should record his response as follows; 'DW1 Response: I have nothing to clarify. Court: I have given DW1 the opportunity to clarify any questions raised during cross-examination, but he replied that he has nothing to clarify'. The trial magistrate would then sign off on this part of the record. 11 Next, since this witness is self-represented, in a case like this; where the appellant stated he would have witnesses, the record should proceed as follows; 'Court: You informed the court when the ruling on the case to answer was delivered that you would have witnesses. Have they appeared today? DW1 Response: They have not appeared today. I pray for another hearing date and request that summons be issued for them to attend. OR DW1 Response: I had informed the court that I would call witnesses, but ! no longer find it necessary to do so. I pray to close my case. Based on the response, the court would proceed with appropriate orders, as follows; Court: Since the witnesses mentioned by the defence have not appeared today, the matter is adjourned, and summons be issued to the defence witnesses. Order: Hearing on (date). Witnesses (names) to be summoned to appear. ABE/AFRIC, as the case may be. OR Court: As DW1 has stated that he no longer wishes to call his witnesses and has prayed to close his case, the prayer is granted, and the defence case is hereby marked as closed. The magistrate would then sign/ 12 After that, the court should provide the parties with the opportunity to make any further statements, including whether they wish to make closing submissions. If they request to do so, the court should record their responses and set a date for filing the submissions. If they choose not to file final submissions, the court will proceed to set a date for judgment. It has been a common practice for self-represented accused persons to be denied the right of re-examination, this is incorrect. To ensure a fair trial, even a self-represented accused must be granted this right. For example, the law under section 229 of the CPA recognizes the need to inform an unrepresented accused person about his right to conduct cross-examination during the prosecution case hearing. If this can be done during the hearing of prosecution case; why shouldn't the same rights be communicated during the defence stage? The provision of section 229 reads; '229. - (1) Where the accused person does not admit the truth of the charge, the prosecutor shall open the case against the accused person and shall call witnesses and adduce evidence in support of the charge. (2) The accused person or his advocate may put questions to each witness produced against him. (3) Where the accused person does not employ an advocate, the court shall, at the dose of the examination of each witness for the prosecution, ask the accused 13 person whether he wishes to put any questions to that witness or make any statement (4) Where the accused person asks any question, the magistrate shall record the answer and, if he makes a statement, the magistrate shaii, if he thinks it desirable in the interest of the accused person, put the substance ofsuch statement to the witness in the form of a question and record his answer/ Therefore, if the accused person is informed of his rights during the prosecution case, should he not also be informed of these rights during the defence case? In the interest of both parties having equal rights and to ensure that justice is served not only in theory but in practice these rights must also be communicated to the accused during the defence stage, as I have outlined above. I have taken considerable time to elaborate on this issue because I have observed that many self-represented persons be it in criminal or civil cases are often denied this fundamental right. I urge adjudicators, to ensure that these self-represented persons are fully informed of their rights. However, in doing so, it is essential that they maintain impartiality. Having explained this point in detail, I now return to the appellant's complaint, in which he asserts that he was denied the right to call the witnesses he had previously mentioned when he was informed of the case to answer. 14 There is no doubt that, as the records indicate, the appellant stated he would have witnesses to call. The records also show that after he completed his testimony and underwent cross-examination, the trial magistrate recorded Re-examination of the Accused.' As I have previously explained, this was incorrect. The appellants response, 'My witnesses are not necessary' does not amount to a clarification in response to the questions asked of DW1 during cross-examination. Instead, it indicated to the trial magistrate that the appellant no longer intended to call any witnesses. As a result, the trial magistrate proceeded to schedule a date for judgment. I have assessed the procedural flaws and concluded that they did not result in any miscarriage of justice. I affirm this view because if the appellant had been denied the opportunity to call witnesses on 18th June, 2024 when the case was set for judgment, he would not have informed the court that he was ready for the judgment. Instead, he would have indicated to the court that he still had witnesses who needed to testify, but he did not express this. The records reflect; ' Date 18/06/2024 BEFORE: HON G. J MBAGO SRM PROSECUTION: STATE ATTORNEY MwapHi and S/A Kondoro Present ACCUSED: Present 15 CO: MALIMUSI SA KONDORO: This case is coming for judgement We are ready for the judgement ACCUSED: I am ready for the judgement COURT: The judgement is not ready Sgn SRM 18.6.2024 Order: 1. Judgement on 24.06.2024 2.ABE Sgn SRM 18.6.2024' The typed proceedings do not indicate whether the matter was brought back to court on 24th June, 2024 as scheduled for judgment. However, upon reviewing the handwritten proceedings, the records reveal that; ' Date 24/06/2024 BEFORE: HON G. J MBAGO SRM PROSECUTION: S/A Kondoro Present ACCUSED: Present CO: MALIMUSI Court: While composing the judgment in this case, I have realized that the accused did not dose his case. As such, I hereby vacate my order made on 11th June, 2024 in which I scheduled the matter 16 for judgment Following the vacation of that order, the accused is now asked if he has anything to say. ACCUSED: No, I pray to dose my case. S/A KANDORO; I have no objection COURT: Defence case is hereby marked dosed Sgn SRM 24.6.2024 Order: 1. Judgement on 01.07.2024 2.ABE Sgn SRM 18.6.2024' The records of 1st July, 2024 when the matter came up for judgment, indicate the following; 'DATE 01/07/2024 BEFORE: HON G. J MBAGO SRM PROSECUTION: S/A Kondoro Present ACCUSED: Present CC: MALIMUSI SA KONDORO: This case is coming for judgement We are ready for the judgement ACCUSED: lam ready for the judgement COURT: The judgement has been read over to the parties and the right of appeal has been explained to the parties. Sgn 17 SRM 18.6.2024 The records clearly show that on both occasions, 18th June and 1st July, 2024 when the appellant appeared for judgment, he informed the court that he was ready for the judgment. Additionally, on 24th June, 2024 when the trial court vacated its order for judgment, the appellant did not mention anything about calling witnesses. Instead, he opted to close his case. If the appellant genuinely intended to call witnesses, it would be illogical for him to express readiness for judgment or proceed to close his case without informing the court of their availability. His failure to do so, combined with this complaint, suggests that it is an afterthought. His statement,My witnesses are not necessary/ followed by closure of his case implies that he had no further intention of calling those witnesses. In light of this, I conclude that there was no violation of the appellant’s rights, and the provisions of section 231 of the CPA that he complained about was duly complied with. As I proceed with the other complaint regarding procedural irregularities, it was alleged that section 192 of the CPA was not complied with. This section deals with the Preliminary Hearing (PH) to determine 18 matters not in dispute. Ms. Florence explained that the section was fully complied with, referring to page 3 of the typed proceedings. I went through the page and found only the following; ' PH BY PROSECUTION MEMORANDUM OFAGREED FACTS AS FOLLOWS: 1. Particulars of the accused person 2. He was at Mitambo on 19.04,2024 3, The incident was reported to Mtwara Centra! Police Station 4, He was interviewed by WP 7604 CPL RAIKI 5. He was arraigned before this court on 05.04.2024 Court: Agreed and signed by parties. Sgn SRM 05.04.2024 SA ZEGGE- We shall have five witnesses and one exhibit, we have two witnesses today.' Sgn SRM 05.04.2024 PROSECUTION CASE STARTS PW1..1 In the records, the proceedings concerning the PH begin there. Despite it being noted as 'PH by Prosecution, ■ no specific facts are written there. Instead, there is a 'Memorandum of Agreed Facts.11 examined the origin of these facts which were agreed, and upon further inspection of 19 the record, I discovered that the'Facts of the Case'\w$ been filed by the State Attorney on 5th April, 2024 and subsequently endorsed by the trial magistrate. Within these facts, it was noted that the trial magistrate recorded responses such as't is true' or xIt is not true' reflecting the appellant's statements during the PH. This procedure is not correct; the trial magistrate conducted the PH in a manner that deviated from the standard procedure. However, regarding whether this irregularity resulted in any prejudice to the case, my conclusion is that it did not. This conclusion is drawn after considering the purpose of a PH and the impact when the procedure is not followed, as explained in the case of in Fuhgile Mazuri v. R, (Criminal Appeal No. 147 of 2012) [2013] TZCA 273 (29 July 2013), where the Court of Appeal remarked; ■ We have always restated that the intention of the legislature in enacting section 192 of the CPA on holding ofpreliminary hearing was to accelerate and speed up trials in criminal cases (see- CRIMINAL APPEAL NO. 109 OF2002, 1. JOSEPH MUNENE, 2. ALLY HASSANI VS. THE REPUBLIC (CAT at Arusha) (unreported). We have further restated that criminalproceedings can be said to have been vitiated by the omission of the trial court to hold preliminary hearing only when upon perusal of the record it is shown that the appellant's trial was either delayed or caused extra costs or prejudiced the appellants: (see-1. JOSEPH MUNENE, 2. ALLY 20 HASSANI VS. THE REPUBLIC (supra). Mr. Karumuna is with due respect correct, there is nothing on the record to show the appellant suffered any delay or extra costs or any other prejudice on the appellant because of the failure io conduct the preliminary hearing! It is based on what was stated in this case that I have reached the finding that the failure to follow the correct procedure in conducting the PH did not affect this case in any way. Therefore, I find this complaint to be without merit. Additionally, I emphasize that the trial magistrate should adhere to the proper procedure when conducting the PH. Another procedural irregularity raised by the appellant pertains to non-compliance with section 230 of the CPA. I find this complaint to be without merit, as this provision addresses the discharge of an accused person when there is no case to answer, which is not applicable in this instance. Given the circumstances of this case, the relevant provision is section 231 of the CPA, which was duly complied with. Lastly, regarding the procedural irregularity, the appellant has raised a complaint concerning section 127(2) of the TEA, alleging that the procedure for taking the evidence of PW1 was not followed. In response to this complaint, the State Attorney acknowledged that the proper procedure was not followed. She contended that although the 21 trial magistrate recorded that PW1 was tested to determine whether he understood the duty to speak the truth, the record does not show the specific questions asked during this testing. Ms: Florence urged, despite this procedural lapse, the court still has the authority to assess whether PW1 was a credible and reliable witness. If the court determines that he was reliable and credible, then his testimony can be considered even if the procedure was not adhered to. To support this argument, Ms. Florence cited the case of George Jonas Lekilwa v. R (Criminal Appeal No. 374 of 2020) TZCA (16 April 2024), emphasizing that PW1 was a credible witness, As Ms. Florence acknowledged, section 127(2) of the TEA was not complied with, and I also concur with both parties that the record clearly indicates non-compliance with this section, This provision requires a child of tender age to give evidence without taking an oath or making an affirmation but to promise to tell the truth and not lies. The provision states; '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 to the court and not to tell any lies.' The question arises; how can this child witness promise to tell the truth and not lies? The case of George Lucas Marwa v. R (Criminal 22 Appeal No. 382 of 2019) [2023] TZCA 17424 provides guidance on this matter, stating; 'It is our conviction that where a witness is a child of tender age, a trial court should at the beginning ask a few pertinent questions, so as to determine whether or not the child witness understands the nature of oath. If he replies in the affirmative, then he or she can proceed to give evidence on oath or affirmation, depending on the religion professed by such chiid witness. If such child does not understand the nature of oath, he should, before giving evidence, be required to promise to tell the truth and not to tell lies. The procedure explained should be reflected on the proceedings of the trial '[Emphasis Added] In addition to this case, other cases that have provided guidance include; Godfrey Wilson v. Republic (Criminal Appeal No. 168 of 2018) [2019] TZCA 109, Issa Salum Nambaluka v. Republic (Criminal Appeal No. 272 of 2018) [2020] TZCA 10, Shabani Said Likubu v. Republic (Criminal Appeal No. 228 of 2020) [2021] TZCA 251 and Ahamad Salum Hassan @ Chinga v. Republic (Criminal Appeal No. 386 of 2021) [2023] TZCA. As noted earlier in this discussion, the procedure for taking evidence from PW1 was not followed. The question now is: what is the way forward? section 127 of the Evidence Act, as amended by the Legal Sector Laws (Miscellaneous Amendments) Act, 2023, introduced section 127(7), 23 which states that a failure by a child of tender age to meet the requirements of section 127(2) of the Act does not render the evidence inadmissible. The section states; '32. The principal Act is amended in section 127, by- (a) adding immediately after subsection (6) the following: (7) Notwithstanding any other law to the contrary, failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence of such child inadmissible.’ The case cited by Ms. Florence, George Jonas Lesilwa v. Republic, discusses the purpose of the amendment to this provision, that; 'For the sake of completeness, we are constrained, before leaving this subject, to observe that, going by the above interpretation of the law, it must be dear that, the evidence ofa child of tender age should not be discarded on flimsy reasons without proof on a balance ofprobabilities that there wassomething lacking that really affected the quality and credibility of such evidence. In other words, an appellate court should look at the substance of the complaint raised by the appellant and see whether the alleged non- compliance with section 127 (2) of the Evidence Act was of such a nature as to be said, in rational terms, to have produced a substantial defect upon such evidence. The above observation, no doubt is the reason behind the recent introduction of section 127 (7) of the Evidence Act as amended by the Legal Sector Laws (Miscellaneous Amendment) Act No. 11 of2023...' 24 After examining the amendment and its intended purpose, the question is; based on the evidence of PW1, is PWl's testimony reliable and credible? While I acknowledge that the assessment of a witness's credibility is primarily the responsibility of the trial court, which is in a better position to evaluate the witness’s demeanor, the appellate court also has the authority to assess credibility using criteria such as the consistency of the testimony, corroboration and the witness's ability to observe the event and accurately recall details. Looking at PWl's testimony, I found that it demonstrated consistency and was supported by PW2. PW1 provided a detailed account of the events on 19th March, 2024 stating that the appellant inserted his penis into PWl's anus. Notably, even during cross-examination by the appellant, PW1 maintained the same response. Considering PWl's testimony, which he consistently maintained throughout his statement, I have no reason to doubt its credibility. Although section 127(2) was not complied with, this does not render PWl's evidence unreliable or untrustworthy. Therefore, I find this complaint to be unfounded as well. Turning now to the complaints regarding the trial court's consideration of the defence, I find that this issue does not require 25 extensive deliberation. A review of the judgment reveals that the trial magistrate did evaluate and analyze the evidence from both parties while discussing the issues for determination. The appellant’s defence was considered but ultimately rejected. For instance, had I found that the trial court failed to exercise this duty, being the first appellate court, which operates as in a form of rehearing, I would have undertaken the task of re-evaluating, scrutinizing, and analyzing the evidence to reach my own conclusions. However, since the trial court fulfilled this duty, I see no grounds for faulting it. Therefore, I find this ground to lack merit. Finally, regarding the claim that the case was not proven beyond a reasonable doubt, Ms. Florence argued that it was indeed proven beyond reasonable doubt, citing the testimonies of PW1 and PW2 as key evidence. As previously discussed, I have addressed the credibility and reliability of PW1 when examining the issue of non-compliance with section 127(2) of the TEA. The testimony of PW1, corroborated by PW2, the victim's mother, has successfully established that the appellant attempted to engage in an unnatural act with PW1. In reviewing the appellant's defence, which was rejected by the trial court, it failed to challenge or raise any reasonable doubt regarding the prosecution's case. 26 Therefore, I find this complaint to be without merit and accordingly dismiss it. Having considered all the grounds of appeal and finding them to be without merit, I conclude that this appeal, in its entirety, lacks merit and is hereby dismissed. It is so ordered.-. Zc° — Dated at/Mtwara. this 17th, October, 2024. 'o, z?/f M. B. Mpaze Judge Court: Judgrrfefit-Is delivered today in the presence of Ms. Florence Mbamba learned state-attorney for the Republic and the appellant. c M. B. aze t- ? -■< Judge 17/10/2024 27