CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA ATMBEYA (CORAM: MWANDAMBO, J.A.. KAIRO, J.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 530 OF 2021 DEKO FARIA...................................................................................APPELLANT VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Ebrahim, J.^ dated 15th day of October, 2021 in Criminal Appeal No. 161 of 2020 JUDGMENT OF THE COURT 2nd & 10th December, 2024 MWANDAMBO, J.A.: Deko Faria stood charged with unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code before the District Court of Mbeya, at Mbeya. The prosecution case had it that the appellant committed the offence to a 10 years old boy whose identity will be withheld but to be referred to as CR, PW2 or the victim. Upon such conviction the appellant was sentenced to the mandatory life sentence. His quest to assail both conviction and sentence hit a snag on appeal before the High Court at Mbeya which dismissed it, hence this second and final appeal. The facts behind the appellant's arraignment and conviction are fairly sad. On 1 November 2018 in the evening, PW2 and his two friends; Kelvin and John were playing at a place called Nsalaga within Mbeya District. In the course of their game, the appellant, who was unknown to PW1 emerged and asked CR to escort him to his place to take a rabbit to which he obliged. However, instead of accomplishing the mission, the appellant allegedly detained the victim the whole night during which time he sodomised him four times before releasing him in the morning after giving him TZS 200.00 as bus fare to his home. Before reaching home, CR met his mother; Anna Lucas (PW1) to whom he narrated the ordeal. Upon examination of his body, PW1 found faeces spread around the victim's anus and thereafter she and her husband took their son to the police where they were issued with a PF3 before going to a hospital called Igawilo for medical examination. Raphael Mengo (PW3) a clinical officer at Igawilo hospital who examined the victim, saw uncontrolled faeces around his anus which was indicative of sodomy. He tendered the PF3 containing his findings admitted in evidence as exhibit PI. No. F3132 Detective Corporal Beda (PW4) investigated the case. Upon interviewing PW2 on 2 November 2018, CR narrated to him what transpired to him and led PW4 and his father to a house and room where he spent the previous night and sodomised by the 2 appellant. The appellant was arrested instantly taken to the police, where, F8025 DC Meshack (PW6) interrogated him and recorded a cautioned statement admitted in evidence as exhibit P2. In his defence, the appellant claimed that he was arrested on 3 November 2018 in connection with theft allegations only to be found to have been involved in unnatural offence of an unknown boy. The trial court found the evidence by the prosecution witnesses, in particular, PW2 in the light of the Court's decision in Selemani Makumba v. Republic [2006] T.L.R. 379 for the proposition that true evidence in sexual offences must come from the victim. It also relied on Goodluck Kyando v. Republic [2006] T.L.R. 363. In the latter case, the court held that each witness is entitled to credence and to be believed unless there are good and cogent reasons to the contrary. In addition, the trial court found the case against the appellant proved considering the confession he made in his cautioned statement (exhibit P2). It thus convicted the appellant as charged. Before the High Court, the appellant challenged his conviction on six grounds. The High Court found them baseless to overturn the finding of guilt made by trial court before entering conviction. It concurred with the trial court and dismissed the appeal. Before us, the appellant faults the decision of the first appellate court on 9 grounds of complaint. Four of the grounds are contained in a memorandum of appeal lodged on 11 November 2024 and the remaining five appear in a supplementary memorandum presented on 2 December 2024 with the Court's leave when the appeal was called on for hearing. The appellant appeared in person, unrepresented whilst, Ms. Naomi Mollel, learned Senior State Attorney represented the respondent Republic. As the appellant opted to let the respondent heard first in reply to the grounds of appeal, Ms. Mollel addressed us on the understanding that the appellant would have an opportunity to do alike. Resisting the appeal, Ms. Mollel argued the 2nd ground in the memorandum with the 4th ground in the supplementary memorandum conjointly. She did alike on the 2nd and 3rd grounds in the supplementary memorandum. She argued the rest separately. The appellant's complaint in the first ground is directed against the trial court's alleged failure to deeply evaluate his petition of appeal. Ms. Mollel's submission in reply was that the complaint is misconceived. We agree with the learned Senior State Attorney. The complaint is misconceived in form and substance considering that it is not the duty of the court to evaluate a petition of appeal rather, to consider and determine the grounds of appeal either each of them or only some of them on which the determination of the appeal is based. It is striking from an examination of page 98 - 103 of the record that the first appellate court addressed the appellant's grounds but dismissed them for lack of merit. The fact that it dismissed the grounds is not the same as saying, as the appellant seems to insinuate, that the first appellate court failed to evaluate his petition of appeal. Consequently, we dismiss this ground for being misconceived. Next, we turn our attention to the complaint on PW2/s credibility, subject of the appellant's complaint in the 2nd ground in the memorandum of appeal taken together with the 4th ground in the supplementary memorandum. The appellant's complaint in the two grounds raise the issue of credibility of PW2's evidence for lack of corroboration reason of the failure by the prosecution to call John and Kelvin who were with him immediately before the appellant lured CR to escort him for the purposes of giving him a rabbit. According to the appellant, failure to call the duo entitled the trial court to draw adverse inference against the prosecution which dented its case. Ms. Mollel was steadfast in her submission that, neither PW2's credibility was in issue nor drawing adverse inference was called for in the circumstances of the case. Mindful of section 143 of the Evidence Act, she submitted, the first appellate court addressed itself to the evidence on record and concluded that Kelvin and John were not material witnesses 5 whose absence could have dented the case for the prosecution. This is so because, PW2's evidence was sufficient to prove the case without any need for corroboration having been satisfied that PW2 was a credible and reliable witness and, on the authority of the Court's decision in Goodluck Kyando v. Republic [2006] T.L.R. 363, PW2 was entitled to be believed and his evidence accepted in the absence of any reason to the contrary. With respect, like the first appellate court, we are satisfied that PW2's evidence was credible and reliable as found by the trial court and proved the offence charged corroborated by the cautioned statement (exhibit P2). We also agree that in the circumstances, Kelvin and John were not material witnesses whose absence could have had a bearing on the prosecution case. In any case, as we held in Abdallah Aziz v. Republic [1991] T.L.R. 71, p. 80 - 81 even when the adverse inference is properly drawn, that does not ruin the prosecution case. Neither in this case there was any occasion for drawing an adverse inference nor could such adverse inference have had the effect of ruining the case for the prosecution. We accordingly find no merit in this complaint and dismiss it. This takes us to ground three in the memorandum of appeal. The appellant faults the trial court and first appellate court for relying on the cautioned statement (exhibit P2) which lacked corroboration. For a start we note that, both the trial and first appellate court alluded to the 6 cautioned statement as corroborating PW2's evidence which was erroneous on their part. It is plain from the record that the appellant objected to the admission of the cautioned statement which resulted into an inquiry to determine its voluntariness. At the end of it, the trial court was satisfied that the confession was voluntary and admitted it as exhibit P2. All the same, that statement remained, as it were, a repudiated confession which required corroboration to be acted upon. As we held in Aly Msutu v. Republic [1980] T.L.R. 1 and many other decisions, evidence which requires corroboration cannot corroborate another evidence. To that extent both the courts below strayed into an error in holding as they did that exhibit P2 was capable of corroborating PW2's evidence. Needless to say, we are contended that, PW2's evidence did not require any corroboration to be acted upon in the light of section 127 (6) of the Evidence Act. That section empowers the court to found conviction on the basis of the evidence of a tender age witness victim of sexual offence without requiring corroboration provided it is satisfied that, after assessing his/her credibility, the tender age witness is telling nothing but the truth. The position in the instant appeal is that, the trial court found PW2 credible and a witness of truth. Guided by Goodluck Kyando, it accepted his evidence and satisfied itself that it proved the offence in the hands of the appellant and convicted him. That means, PW2's evidence was sufficient by itself without any need for corroboration. To the extent of the reliance on exhibit P2 as corroborating PW2's evidence which was erroneous, we find no merit in this ground and we dismiss it. The 4th ground in the memorandum of appeal faults the first appellate court for failure to consider his defence. The learned Senior State Attorney urged us to dismiss this ground for being baseless. We respectfully agree with her. It is glaring from the record that this complaint featured before the High Court as ground six in the petition of appeal and the first appellate court addressed it at page 98 of the record but it found no merit in it having satisfied itself that the trial court considered the appellant's evidence at page 7 of its judgment (page 72 of the record). Like the first appellate court we find no merit in this complaint and dismiss it. Through the 1st ground in the supplementary memorandum of appeal, the appellant faults the first appellate court for sustaining conviction relying on contradictory evidence in relation to the place where the offence was committed. Addressing us, the appellant contended that, he could not have committed the offence at Igawilo which was not his residence. On her part, Ms. Mollel, conceded the contradiction but urged us to find it as minor which did not go to the root of the case. We are inclined to go along with her. According to the charge sheet, the offence was committed at Uyole area, Mbeya region. We note that, in his answer to a question in cross examination, PW2 is recorded at page 31 of the record to have said that the appellant resided at Igawilo. PW4's evidence on the other hand was to the effect that, PW2 led him to a house where the appellant rented a room in Uyole but could not remember the street. In our view, the alleged contradiction cannot be said to be material considering PW2's age compared to PW4 who clearly stated the place to be Uyole consistent with the charge sheet. Consequently, we dismiss this ground for lacking in merit which takes us to the 2nd and 3rd grounds in the supplementary memorandum. The appellant's complaint in the two ground relates to wanting evidence of identification. The gravamen of the appellant's complaint is that PW2 did not disclose the course of light which enabled him to identify the colour of the gate to the house in which the appellant stayed considering that he arrived late in the evening. Identification of the appellant was featured as ground 4 in the petition of appeal before the first appellate court. Ms. Mollel's submission was that, PW2 sufficiently identified the appellant considering the time he spent with him coupled with the fact that the victim led PW4 to the place where he was sodomised and pointed to the appellant, hence his arrest. According to Ms. Mollel, on the evidence, there was no possibility of mistaken identity of the culprit. Like the learned Senior State Attorney, we are satisfied that the complaint is, but misconceived. Going by PW2's evidence, the appellant lured the victim to escort him to take a rabbit alone from his friends playing with him at the time. As observed in Judge In charge High Court Arusha & Another v. N.I.N. Munuo Ng'uni [2004] T.L.R. 44, the Court is entitled to apply common sense. And, common sense here does not suggest that PW2 and his friends were found playing in the night. On the other hand, going by PW2's evidence which the trial court found credible and reliable, the victim described the place to which he was taken by the appellant in sufficient detail as evident at page 33 - 35 of the record. His evidence was not controverted during cross examination as shown at page 35 of the record where PW2 is recorded to have said: " You told my friend to wait for us. I boarded a motor vehicle. You told me to board a motor vehicle. No, the passengers did not ask me or surprise that I had faeces on my buttocks. I did not find any reason to report to any passenger in that bus. We arrived at your room at about 20 hours. I identified you because I saw you since 19 hours when you took me from home. I [am] telling this Court what you did to me. No body promised me 10 anything. It is not true that you only raped me but you also threatened me by a knife. You, threatened me by a knife. When we came to your home we found you with a woman. I don't know who that woman was to you; perhaps she is your concubine. The said woman was not at your home when you took me to your home. You gave me bus fare. You rented that house because the said house has many rooms and it is at Igawilo. I don t know the street but it is at Igawiio" In the light of the foregoing piece of evidence, the complaint on wanting identification must fail and we accordingly dismiss grounds 2 and 3 in the supplementary memorandum of appeal. Finally on the alleged wanting evidence proving penetration; the appellant's complaint in the 5th ground in the supplementary memorandum of appeal. The appellant's bone of contention resides in the expert opinion through PW3 allegedly silent on penetration, the appellant was adamant in his submission that no evidence was led to prove penetration despite the claim that PW2 was sodomised four times. On her part, Ms. Mollel argued that in view of PW2's evidence, the complaint is misplaced. We respectfully agree with her in view of our li discussion above in the 2nd ground in the memorandum of appeal and 4th ground in the supplementary memorandum. With or without corroboration, PW2 proved penetration as found by the trial court and concurred by the first appellate court. We have found nothing worth warranting our interference with that finding. This ground is accordingly dismissed. In the upshot, the appeal is devoid of merit and we dismiss it. DATED at MBEYA this 7th day of December, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of the appellant who appeared in person and Mr. Augustino John Magessa, learned State Attorney for the respondent/Republic is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL