CRIMINAL APPEAL NO 201 OF 2022 MASANJA NDALAWA VS

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: JUMA. C.J.. MAIGE. 3.A. And MURUKE. 3.A.) CRIMINAL APPEAL NO. 201 OF 2022 MASANJA NDALAWA...................................................... APPELLANT VERSUS THE REPUBLIC............................................................ RESPONDENT (Appeal from the decision of the Resident Magistrate Court of Mwanza with Extended Jurisdiction at Mwanza) (Tenqwa, SRM-Ext. Jur.^ dated the 6th day of June, 2022 in Criminal Appeal No. 20 of 2021 JUDGMENT OF THE COURT 25th & 28th February, 2025 MAIGE. J.A: The appellant was arraigned before the Resident Magistrate Court of Geita (the trial court), for unnatural offence contrary to section 154 (1) and (2) of the Penal Code. The charge sheet asserted that on 17 day of December, 2020, at Ibisabageni village- Isulwabutundwe in the District and Region of Geita, the appellant did have carnal knowledge of a boy of three years (the victim) against the order of the nature. Following his trial, the appellant was convicted and sentenced to life imprisonment. His first appeal which was heard by a Senior Resident Magistrate with Extended Jurisdiction stationed at the Resident Magistrate Court of Mwanza (the first appellate court), was dismissed. Once again aggrieved, the appellant lodged a notice of intention to appeal and eventually, the relevant record of appeal was filed. In a snapshot, four witnesses testified before the trial court in a bid to prove the case. The victim testified as PW2, her mother Lucia Nshoma testified as PW1 and tendered a birth certificate purporting to be of the victim (exhibit PI), Shitari Daniel, a clinical officer at Nzela hospital testified as PW3 and tendered a medical report (exhibit P2), and G. 8254 DC Majunga, a police officer from Butundwe police station testified as PW4 and tendered a cautioned statement purporting to be of the appellant (exhibit P3). In his testimony, PW2 claimed that on 17th day of December, 2020 (the material date), while he was under a mango tree, the appellant whom he described as a person who used to sell grinders and pestle at their home, appeared and inserted his penis ("furu") into his anus "inya". PW1 testified that, as the victim was coming back home, she observed that, aside from walking with difficulties, he appeared to be tiresome. She, therefore, inspected his anus and found some stains of blood therein. When she asked him what was wrong, the victim revealed the ordeal and named the appellant to be responsible therefor. The matter was reported to the police and the victim taken to the hospital where he was examined by PW3. The result, as per exhibit P2, was such that there were bruises and blood in the victim's anus which was a signification that he had been penetrated in his anus. Ultimately, the appellant was arrested and, upon interrogation by PW4, confessed as per exhibit P3, to have committed the offence. Upon closure of the prosecution case, the appellant was found with a case to answer. In his evidence as the sole defence witness, the appellant totally denied being connected with the offence. He said, he was arrested on 18th December, 2020 at the village while he was constructing a canoe and taken to the police station. Believing that the evidence of the victim as corroborated by the other three witnesses to be credible and reliable, the trial court, as we said above, convicted the appellant and sentenced him as afore stated. Both the conviction and sentence were blessed on appeal by the first appellate court henceforth the instant appeal. On 22nd August, 2022, the appellant lodged a memorandum of Appeal containing five grounds. In the first two grounds, the appellant is criticizing the trial court for admitting and placing reliance on a cautioned statement (exhibit P3) despite that it was recorded in contravention of section 28 of the Evidence Act and was not read out after being cleared for admission. In the second ground, he is faulting the two courts below for relying on the hearsay evidence of PW1 and in not taking into account that the victim's evidence as to the identity of the appellant was not sufficient. In the fourth ground, the appellant is complaining that he was convicted without there being evidence of penetration while in the fifth ground, he is asserting that the case against him was not proved beyond reasonable doubt. Again, on 6th September, 2023, the appellant lodged a supplementary memorandum of appeal consisting of five grounds. In the second and third grounds, the appellant further challenges the admissibility and reliability of exhibit P3 in so far as it was extracted in total violation of the provisions of sections 50, 51 and 57 of the Criminal Procedure Act. In the first ground, the appellant complains that the evidence on the age of the victim on the record is at variance with the charge sheet whereas, in the fourth ground, he is complaining that the case against him was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person while the respondent Republic had the services of Mr. Castuce Clemence Ndamugoba, learned Principal State Attorney who was being assisted by Mr. Godfrey Sanare Odupoy, learned State Attorney. In prosecuting his appeal, the appellant fully adopted the grounds of appeal in the two memoranda and urged us to allow the appeal. In his submission in opposition of the appeal, Mr. Ndamugoba r addressed the first two grounds in the initial memorandum of appeal and the second and third grounds in the supplementary memorandum of appeal under the proposition that the cautioned statement in exhibit P3 was improperly admitted into evidence. He was positive in his submission that indeed, the admission and reliance by the two courts below on the said statement was not proper in law. He clarified that, under section 27 of the Evidence Act, while the burden of proof as to the voluntariness of the procurement of a confessional statement is on the prosecution, in this matter, although the appellant retracted the same and an inquiry conducted, the confessional statement was admitted based on failure of the appellant to prove that the extraction of the same was not voluntary. He submitted, therefore that, in doing so, the trial court shifted the burden of proof on the appellant, an act which rendered the result of the inquiry legally incorrect. Further to that, Mr. Ndamugoba submitted, while the time available for interviewing a suspect is, in terms of section 50 (1) of the Criminal Procedure, four hours from the date of arrest and there being no evidence of the arresting officer, it remains unclear if the recording of exhibit P3 was within time. He, therefore, urged us to allow the respective grounds of appeal and exclude exhibit P3 from the evidence on the record. We are in agreement with the learned Principal State Attorney that where, like here, a confessional statement is retracted, the prosecution is obliged to prove, beyond reasonable doubt that, the procurement of the respective cautioned statement was voluntary. This is in accordance with section 27(2) of the Evidence Act which provides that "the onus o f proving that any confession made by an accused person was voluntarily made by him shall He on the prosecution." In this case, when the prosecution sought to produce the cautioned statement, the appellant objected asserting it was not made voluntarily. The trial court having conducted an enquiry, it overruled the objection and admitted the statement into evidence for the reason that, the appellant did not adduce sufficient evidence to prove that the extraction of the same was not voluntary. With respect, that was quite wrong as the burden of proof was, as correctly submitted for the 6 respondent Republic, on the prosecution and not the appellant. On that account, therefore, and without necessarily considering the issue of time, we find the complaints in the first two grounds in the initial memorandum of appeal and the second and third grounds in the supplementary one with merit. They are accordingly allowed. As a result, the cautioned statement in exhibit P3 is excluded from the evidence. We now remain with the last three grounds in the initial memorandum of appeal and the first, third and fourth grounds in the supplementary memorandum of appeal which, as correctly submitted for the respondent Republic, raise an issue of whether or not the case against the appellant was proved beyond reasonable doubt. The appellant's complaint in the first place is that, the age of the victim has not been proved as there are contradictions in respect thereof between the charge sheet and evidence. In response, Mr. Ndamugoba submitted that, the evidence of the victim's mother (PW1) which is substantiated by the victim's birth certificate in exhibit PI is in conformity with the three years age in the charge sheet. We note from the charge sheet that the victim is described as a boy of three years. In her oral evidence which was adduced more than three months after the incident, his mother (PW1), mentioned his age as three years and five months. Her evidence was based on the victim's birth certificate which was admitted, without objection, as exhibit PI. In the respective exhibit, it is stated that the victim was born on 27th June, 2017. Come what may, therefore, at the time of the incident, the victim had not attained the age of 4 years. In our view, describing the age of the victim based on the years without mentioning the months over and above, was sufficient in the nature of the charge the appellant was facing. The testimony of PW1 can, therefore, not be said to be at variance with the charge sheet merely because of its details in the age of the victim in as much as the same does not make his age to be above three years. Next was a complaint that the appellant was not correctly identified because he was just named as a man who used to sell grinders and pestle. Mr. Ndamugoba submitted that the said description of the appellant's identity was, in the circumstances of this case, sufficient considering that the appellant was the only person who was selling such items in the locality under discussion. We note that in the first appeal, the issue of identification of the appellant by description as a man who sells grinders and pestle was not raised. As a result, it was not adjudicated upon. Ordinarily, that would not, as per the principle in Abdul Athuman v. R. [2004] T.L.R. 151, be expected in a second appeal like this. Conversely, as the fact is material in addressing the issue of proof of the case beyond reasonable doubt, which is in the grounds of appeal, we shall deal with it. In so doing, however, we shall be cautious that, this being a second appeal, our power to disturb the concurrent factual finding of the two courts below arises only if there be misdirection on the point of. law or misapprehension of the substance, nature and quality of evidence. This principle was stated, in among others, the case of Mbaga Julius v. R. (Criminal Appeal No. 131 of 2015) [2016] TZCA 274 (25 October 2016). In her evidence, PW1 testified that, as the appellant was the only person who used to sell such items at Ibisabageni street, when the victim described him as such, she was able to easily link the appellant with the incident and sooner than longer, reported him to the police as the suspect. Irrefutably, on the basis thereof, the appellant was arrested just a day after, in the locality. Besides, as per the evidence of PW1, which was not contested, the appellant was her neighbor and the mango tree under which the incident allegedly occurred, was just 20 to 30 paces from her residence. In his evidence in defence, the appellant did not deny that he was the only man who was selling such items at the place in the village called Ibisabageni. Indeed, he expressly admitted that he was at the particular place on the date of the incident. In view of the age of the victim and the condition he was in, and the fact that he identified the suspect by his business activity and named him to PW1 who, through such description, was able to identify the suspect as the appellant as he was the only person with t such business activity in that particular locality and that, having reported him to the police, the appellant was on the next day arrested in connection thereto; establish, without any reasonable doubt that he was correctly identified. We have also taken into account that, aside from admitting presence at the locality on the material date, the appellant did not deny to be the only person with such a business activity thereat and that, he was PWl's neighbor. The complaint that, penetration was not established, is to say the least absolutely baseless as the evidence of PW2 and the report in exhibit P2 which was based on the examination conducted by PW3 on the material day, proved beyond reasonable doubt that, the victim was penetrated into his anus. Notably, before that, PW1 had inspected the victim and found blood in his anus. Such evidence has never been contradicted. m In view of the foregoing submissions, we find the instant appeal without merit and it is hereby dismissed. DATED at MWANZA this 27th day of February, 2025. I. H. JUMA CHIEF JUSTICE I. J. MAIGE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 28th day of February, 2025 in the presence of appellant in person and Ms. Neema Kibodya, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. ii