MATEI GEORGE MPONDELA VERSUS RUPBLIC JUDGMENT

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 15541 OF 2024 (Arising from the Dodoma District Court in Criminal Case No. 125 of 2023) BETWEEN MATEI GEORGE MPONDELA ……..…….……… APPELLANT VERSUS THE REPUBLIC …………………….…..…..….. RESPONDENT JUDGMENT Date of last Order: 28/08/2024 Date of the Judgment: 04/09/2024 LONGOPA, J.: The appellant challenged the decision of the District Court of Dodoma against conviction in a cognate offence of grave sexual abuse c/s 138C(1)(a) of the Penal Code, Cap 16 R.E. 2022. The appellant stood charged with the unnatural offence c/s 154(1)(a) and (2) of the Penal Code, Cap 16 R.E. 2022. Upon being dissatisfied with the whole decision both conviction and sentence dated 5th April 2024, the appellant appealed against the decision on the following grounds, namely: 1|Page 1. That, the trial Court erred in law and in fact by convicting the appellant while the respondent failed to prove the case beyond reasonable doubt. 2. That, the Court erred in law and in fact by failure to consider the defence side thence occasioned miscarriage of justice. It was the prayer of the appellant that the appeal be allowed thus judgment both conviction and sentence of the lower court be quashed and set aside. On 28th August 2024, the parties appeared before me for viva voce hearing of the appeal. Mr. Francis Mwakifuna and Ms. Victoria Njau, learned State Attorneys for respondent and Mr. Fred Peter Kalonga, learned advocate. Mr. Fred Kalonga, advocate was the first one to take up the arms to challenge the judgment of the District Court of Dodoma. He reiterated that the appeal is grounded on two grounds of appeal, failure to prove the case to the required standard and failure to consider defence case. On the first ground relating to the failure to prove the case beyond reasonable doubts, it is submitted that the offender was charged with unnatural offence Criminal Section 154(1)(a) and (2) of the Penal Code, Cap 16 R.E 2022. 2|Page The counsel for the appellant argued that upon hearing of the prosecution witness three in total, the trial Magistrate was satisfied that the appellant had not committed the offence of unnatural offence as the prosecution did not manage to prove the offence charged as per page 8 of the Judgment of the Court. It was reiterated that surprisingly, the trial Magistrate stated that the appellant would be wisely be charged with lesser offence which is grave sexual abuse. It was stated that this was arrived after the prosecution’s evidence failed to establish the offence that was preferred in the charge. It was submitted that the procedure applied by trial Magistrate to find the appellant guilty of the so-called lesser offence using the same evidence which failed to establish the offence unnatural offence is not correct. The appellant argued that the cases cited by the trial Magistrate to substantiate the finding in a lesser offence, the same require that facts must be clear to establish the offence. The evidence was contradictory and failed to establish the offence of the unnatural offence. It was the Magistrate’s view that the evidence was not sufficient to establish the unnatural offence. Thus, the trial Magistrate ought to have acquitted the appellant for the failure to prove the case beyond reasonable doubts. It was reiterated further that the same evidence was doubted by the trial Magistrate that version of story of t victim differ from that parent and that of the police officer. The evidence was not consistent and could not have established the offence. 3|Page Indeed, for all intents and purposes, contradictory evidence could not have established the cognate offence as the witnesses had testified in contradicting one another and that material witness a medical doctor was called. Thus, this ground is meritorious thus it should be allowed. On the second ground related to failure to consider defence evidence by the trial Court leading to injustice, it was submitted that the defence raised a defence of alibi by stating that the appellant on material date was away where he went to collect the debris before the father of victim came to the appellant to arrest. The trial magistrate ought to have stated to what extent had the evidence of the defence was treated and it resulted into miscarriage of justice. It is appellants prayer that this appeal be allowed thus conviction and sentence be quashed and set aside on the strengths of the submission made. As a result, the appellant be set at liberty forth with. On the other, Mr. Francis Mwakifuna argued that the respondent objects the appeal in its totality as both grounds have not merits whatsoever. In respect of proof beyond reasonable doubt, it was submitted that appellant was charged with unnatural offence Criminal Section 154(1)(a) and (2) of the Penal Code, Cap 16 R.E. 2022.The prosecution called three (3) witnesses including the victim aged 4 years old, the trial Court upon evaluation of evidence found that the evidence would 4|Page support a cognate offence of grave sexual abuse rather than the unnatural offence. The Court has powers to substitute the cognate offence by considering the offence and facts tendered in evidence. It has powers to change/substitute the charge to a lesser offence as per the cases cited in page 10 of the trial Court’s judgment include that of Tambi Omari vs R Criminal Appeal No. 78/2018, are illustrative. In the circumstances, the evidence including the victim stated clearly that the appellant did commit the offence of grave sexual abuse. At pages 10-11 of the proceedings, the victim did recognize the appellant and that the appellant did insert the finger and then “Kidudu” at the victim’s anus. The evidence of the victim had established the offence that the appellant was facing. This is in accordance with the principle in Selemani Makumba vs Republic where the best evidence comes from the victim. The victim testified to know the appellant. Further, the appellant was afforded right to cross examine the victim where the victim stated that he knows the appellant. The victim’s evidence and that of other witnesses, the Court noted that evidence of prosecution had proved that grave offence was committed and the evidence of pw1, PW2 and PW3. The evidence of other persons apart from the victim is corroborative nature only. The father of the victim and the police officer 5|Page had corroborated. The evidence of the investigator at page 17 of the proceedings corroborated that evidence of the victim that penis was inserted. In respect to 2nd ground, it is submitted that defence evidence was considered. The Court stated the reasons that its findings was based on the prosecution’s case strengths the trial Court analysed the evidence of the appellant. The evidence of the appellant did not impair the prosecution evidence. The commission of the offence was immediately reported thus the appellant has arrested thereby as he was found at his place. The appellant did not dispute to know the victim. The prosecution evidence was not dented by any other evidence to raise any reasonable doubt. It is on these grounds, the respondent submitted that both grounds of appeal are devoid of merits. The conviction and sentence be upheld and that the appellant should be performing his sentence as imposed by trial Court. In rejoinder, Mr. Fred Kalonga, advocate reiterated that there is nowhere the accused was recognized on dock by the victim but the second prosecution witness is the one who did recognize the appellant. The appellant did not admit to have committed the offence in question. In respect to corroborative nature of evidence of other witnesses apart from the victim, it was argued that the grave sexual abuse came 6|Page only after the prosecution contradicted itself. There was no penetration that could have been established. The grave sexual abuse is a criminal offence under Section 138C(1)(a) of the Penal Code, Cap 16 R.E 2022. PW1 and PW2 stated there was insertion of penis, while PW3 stated that there was no penis inserted. PW3 stated that there was only a scar as there was no penetration. The victim and father of victim were of the evidence that there was insertion of penis, while PW3 stated that there was no penis inserted. PW3 stated that there was only a scar as there was no penetration. The victim and father of victim were of the evidence that there was penis insertion. The other persons witnesses are not supporting that of the victim. The appellant deserves to be discharged. It is a trite law that defence evidence must be considered. Failure to consider the defence evidence vitiates the whole judgment. The appellant stated that on strength of the evidence on record and submission in this Court, the appeal should be allowed. Having heard rival submission by learned counsel for the parties, it is incumbent to this Court to analyse the records available in light of the grounds of appeal to satisfy itself on validity or otherwise of the appeal. In so doing, I have had an opportunity to critically evaluate the available evidence in the proceedings and analysis of the same in the judgment of the trial court. In addressing the first ground of appeal, it is important to delve into analysis of three important aspects. One, the nature of the charge 7|Page preferred as against the available evidence. Two, nature of cognate offence in light of available evidence on record. Third, credibility of the evidence hence proof of the case to the required standard in law. The charge which the appellant faced before the trial court was that of the unnatural offence. The contents of the charge stated as follows: STATEMENT OF THE OFFENCE UNNATURAL OFFENCE: Contrary to section 154(1)(a) and (2) of the Penal Code [Cap 16 R.E. 2022] PARTICULARS OF THE OFFENCE MATEI GEORGE MPONDELA on 9th July 2023 at Nkuhungu area within the District of Dodoma in Dodoma Region, did have carnal knowledge with one WHELAN PRIVA PINDA a boy of 4 years old against the order of nature. Signed at Dodoma this 29th day of August 2023 SGD SENIOR STATE ATTORNEY It is on record that facts that were read in the Preliminary Hearing conducted on 3rd October 2023 reflect that accused person undressed the victim and penetrated his male organ into victim’s anus. Further, it was stated that upon arrival at home, the victim informed his father after an enquiry that appellant is the one who had carnal knowledge of 8|Page the victim against the order of nature. These facts formed the basis of the whole prosecution’s case before the trial court. That is what the appellant had been denying all along since the arrest on the material date of the alleged commission of the crime. It is a law that a criminal case is commenced by the institution of a charge or information as the case may be. Role of the charge in criminal justice cannot be overstated. It is crucial in ensuring that criminal justice is administered in a proper and correct manner. Drafting of charge should always consider the available evidence. In case available evidence reveals existence of a different offence than the one charged it is incumbent upon the prosecution to prefer appropriate charge or amend that charge if there is discovery that evidence does not support the charge to reflect the offence for which evidence is available. I am confident that this is the legal position to take as per decision of the Court of Appeal in the case of Francis Fabian @ Emmanuel vs Republic (Criminal Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023) (TANZLII), at page 3, the Court of Appeal reiterated on the crucial role of the charge. It stated that: In the circumstance of this appeal, we want to sound a note on the propriety of proving the contents of the charge sheet. We presuppose, it is an elementary knowledge of criminal justice that, the cornerstone of any criminal trial is the charge sheet. The charge 9|Page sheet is a heart, brain and blood of criminal justice and fair trial. It plays a duo role of informing the accused person on the nature of his accusation and allow him to prepare his proper defense. Apart from that, the charge sheet notifies the trial court on the subject matter with a view to determining its jurisdiction and prepare the proper procedure to be applied during trial. Therefore, the charge sheet is the most important document in any criminal trial. It is pertinent that this crucial document in administration of justice must be supported by cogent evidence that tally squarely with the particulars of the charge. Disparities between the charge and the evidence have insurmountable effect on the case. To apply the words of the Court of Appeal in Francis Fabian @ Emmanuel vs Republic (supra), at pages 4-5, the Court noted that: Moreover, it is a duty of the prosecution to produce all necessary evidence to each and every allegation made therein. In the case of Abdel Masikiti vs. Republic, Criminal Appeal No. 24 of 2015 (unreported) at page 8 thereof, this Court insisted that, it is incumbent upon the Republic to lead evidence showing that the offence was committed on the date alleged in the charge sheet, which the accused was expected 10 | P a g e and required to answer. If there is any variance or uncertainty in the dates or month, then the charge must be amended in terms of section 234 of the CPA. If this is not done as in this appeal, the preferred charge will remain unproved, and the accused shall be entitled to an acquittal. Short of that a failure of justice will occur. It should not be re-emphasized that the prosecution being the initiators of the charge have been empowered by the law to amend the charge at any stage of the trial to address the anomaly on variance between charge and evidence under section 234 of the Criminal Procedure Act, Cap 20 R.E. 2022. Failure to seize such opportunity to amend the charge the conclusion of the case has only single effect of failure to prove the charge thus the accused is entitled to acquittal because the ingredients of the offence were not established. In Benedict Kilembe vs Republic (Criminal Appeal 170 of 2009) [2010] TZCA 106 (29 November 2010) (TANZLII), at page 3-4, the Court of Appeal stated that: To start with, we are in agreement with the judge that the trial Resident Magistrate having found that the evidence established an unnatural offence instead of rape could have easily invoked the provisions of Section 234 (1) (supra) and substitute the charge accordingly. 11 | P a g e The magistrate could have done so, subject of course to the provisions of sub-section (2) thereto. It is on record that evidence indicates non-commission of the unnatural offence. PW 1’s evidence was that the appellant put kidudu into the victim’s buttocks. PW 1 stated that appellant undressed the victim’s shirt and boxer, bent the victim and inserted his kidudu into victim’s buttocks. PW 2 stated that victim informed him that victim’s buttocks were aching and reported that someone at Alvin’s place had penetrated the buttocks. It was PW 2’s evidence that upon arresting the appellant he questioned him the reasons for sodomizing his child but the appellant denied. PW 3 stated that victim was undressed his short and inserted the penis in the victim’s buttocks. PW 3 stated that the appellant also inserted piece of kijiti into the victim’s anus. According to PW 3, there was grave sexual abuse because the doctor who examined the victim found that there was no penetration. But the victim had a scar on his anus and the accused person failed to penetrate hence inserted kijiti. From the material evidence on record, it is lucid that evidence of PW 3 stated explicit that when the alleged victim was sent to hospital for medical examination, the medical doctor who examined the victim found that there was no penetration of the victim’s anus. It is on record that 12 | P a g e investigation knew beforehand that there was no unnatural offence committed as in absence of penetration of the anus by penis as investigation was advised by the medical doctor, ought to have alerted the prosecution to prefer a proper charge whose evidence would be easier to establish. In the circumstances, as per PW 3 evidence the appellant was charged with an offence whose evidence was not in existence. Indeed, it was correct for the trial magistrate to find out that there was no proof of the unnatural offence against the accused person (the appellant herein). That analysis is on pages 6-8 of the judgment of the trial court. However, the trial Court substituted the same with a lesser offence of grave sexual abuse contrary to Section 138C (1) (a) and 2(b) of the Penal Code, Cap 16 R.E. 2022. It is noted on page 9 of the judgment that basis of such findings was that victim had faeces and blood flowing from his genital and second, the victim has a scar in his anus. Thus, the trial magistrate concluded that blood and scar are proof of a lesser offence. It appears that the trial magistrate did not appreciate that a scar meant and entails something of a past. Ordinary meaning of a scar is “a mark left on the skin or within body tissue where a wound, burn, or sore has not healed completely and fibrous connective tissue has developed.” In my view, presence of a scar meant that previously the victim had 13 | P a g e either bruise, wound or burn at the anus prior to that date of alleged crime as scar always refer to past injuries not completely healed. Further, there is no evidence that such lesser offence was proved. In order to appreciate this offence, it is important to quote the section as follows: 138C.-(1) Any person who, for sexual gratification, does any act, by the use of his genital or any other part of the human body or any instrument or any orifice or part of the body of another person, being an act which does not amount to rape under section 130, commits the offence of grave sexual abuse if he does so in circumstances falling under any of the following descriptions, that is to say- (a) without the consent of the other person; (b) with the consent of the other person where the consent has been obtained by the use of force threat, or intimidation or putting that other person in fear of death or of hurt or while that other person was in unlawful detention; (c) with the consent of the other person where such consent has been obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol or any drugs, matter or thing. The elements of grave sexual abuse mainly include the lack of consent and sexual gratification. Without establishing these two 14 | P a g e elements, the prosecution cannot be said to have proved the offence of grave sexual abuse. This was the principle in the case of Andrew Lonjile vs Republic (Criminal Appeal No. 50 of 2019) [2020] TZCA 293 (15 June 2020) (TANZLII), at pages 17-18, where the Court of Appeal stated that: Juxtaposing the above particulars of offence of grave sexual abuse with the provisions of section 138C (1)(a),(b), (c) cited earlier, we can unhesitatingly say that while the element of "inserting fingers into the vagina" is disclosed by the Particulars of Offence, the other ingredients of "for sexual gratification" and "lack of consent" are missing out from the particulars of the offence under section 138C of the Penal Code. Because essential ingredients "for sexual gratification" and "lack of consent" were not included in the Particulars of Offence of grave sexual abuse, no evidence was led by the prosecution to prove these two ingredients. Therefore, the prosecution cannot be taken to have proved the offence of grave sexual abuse beyond reasonable when essential ingredients of "for sexual gratification" and "lack of consent" were neither included in the Particulars of Offence nor was evidence presented to prove these ingredients. 15 | P a g e In the case of Onesmo Ezekiel Fundi vs Republic (Criminal Appeal 254 of 2021) [2022] TZHC 318 (11 February 2022) (TANZLII), at page 7, the High Court stated that: As Mr. Shija contended that, "lack of consent" and "for sexual gratification" constitute ingredients of the offence which serve as an indispensable cornerstone of the charge of grave sexual abuse. This implies that a charge of grave sexual abuse that does not factor in the element of “lack of consent” and “for sexual gratification” lacks the requisite completeness. A review of the particulars of the offence in the charge reveals that the same were coined in the following words: “ONESMO EZEKIEL @FUNDI JUMA on 20th day of December, 2020 at Pugu bombani area within Ilala District in Dar es salaam Region, did insert his fingers in the vagina of one SHEMSA OMARY, a girl of 6 years of age. "[Emphasis added] Thus, other than the alleged insertion of fingers into the victim's vagina, none of the other key ingredients have been disclosed in the charge sheet, leaving it profoundly deficient. The principle enunciated in the decisions of the court reveals that for the offence of grave sexual abuse to be proved two important elements must be established. Having considered the evidence of 16 | P a g e record, it is undisputed that neither of these ingredients was established. The only aspect that was stated by PW 3 is that of insertion of kijiti. The trial magistrate relied on section 138C (2) of the Penal Code, Cap 16 R.E. 2022 which provides for penalty without first considering if the elements of the offence of grave sexual abuse were established as in accordance with the section creating the offence. I am not oblivious of the role played by cognate offences under the law. It is appreciated fully that in appropriate circumstances, courts are entitled to convict the accused person for a lesser offence. However, such action by the court can only be invoked where the following conditions are met. First, the cognate offence must originate from the same specie or root with the offence in which the accused was charged. Second, there is proof of all ingredients of the lesser/ cognate offence. Third, the procedure has been adhered to. Indeed, the Criminal Procedure Act, Cap 20 R.E. 2022 provide for cognate offences. It states that: 300.-(1) Where a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of 17 | P a g e the minor offence although he was not charged with it. (2) Where a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it. With regard to the first aspect necessary for convicting on cognate offence, it is illustrative in the principle in the case of Charles Ambrosi vs Republic (criminal Appeal No.338 of 2019) [2023] TZCA 17416 (17 July 2023) (TANZLII), at pages 13-14, where the Court of Appeal observed that: In the case of Robert Ndecho and Another (supra) which was cited by the learned Senior State Attorney, the erstwhile Eastern Africa Court of Appeal faced with analogous situation held that: "Where an accused person is charged with an offence he may be convicted o f a minor offence although not charged with it, if that minor offence is of a cognate character, that is to say of the same genus or species." [Emphasis added] Luckily this Court has had occasion to pronounce itself on this issue in the case of Director of Public Prosecutions v. ACP Abdallah Zombe (supra) in which we discussed at considerable length section 300 18 | P a g e (2) of the CPA which is pari materia to section 181 (2) of the repealed Criminal Procedure Code, Cap. 20, citing the case of Miswahili Mulugala v. R, (1977) LRT No. 25 and subscribed to the position of the learned judge of the High Court as a correct position. The learned judge said: "Although the subsection is seemingly general I think it has to be strictly construed. The test in my view should be whether the minor offence is accommodated in or cognate to the major offence before conviction can be entered for such minor offence. The word "cognate" is defined in the 1966 Impression of Chambers' Twentieth Century Dictionary to mean "of the same family, kind or nature: related or allied." And according to P.G. Osborn's Concise Law Dictionary, 1962 Impression, in Roman law the word "cognate" meant "persons connected with each other by blood." On this understanding, then, if a person is charged with but acquitted of attempted murder and evidence reveals that he used an unlicensed firearm, he cannot be convicted of unlawful possession of a firearm under the Arms and Ammunition Ordinance. The two offences are not cognate as they are products of different ancestors." In the case of Director of Public Prosecutions vs ACP Abdallah Zombe & 8 Others (Criminal Appeal No. 358 of 2013) 19 | P a g e [2016] TZCA 562 (16 September 2016) (TANZLII), at page 42, the Court of Appeal stated that: We fully subscribe to that finding that in order for the two offences to be cognate in terms of S. 300 (2) of the CPA, the minor offence must come from the same root with the major offence. Generally, the offence of grave sexual abuse may be termed as cognate offence to offence of rape or unnatural offence as they originate from the same species of sexual offences. The second important element is in relation to proof of all elements of the lesser offence. In Lucia John vs Akley January (PC. Criminal Appeal No. 12 of 2023) [2024] TZHC 5816 (18 June 2024) (TANZLII), at page 7, the High Court stated that: The ruling whether the accused person has case to answer or not is based on a cannon that the accused is not supposed to be called to testify if the court is satisfied there is no evidence upon which the accused to enter defence. In the case of The Director of Public Prosecutions vs Morgan Maliki and Another, Criminal Appeal No. 133 of 2013 (unreported) cited in the Director of Public Prosecutions vs Philipo Joseph Ntonda, Criminal 20 | P a g e Appeal No. 217 of 2020 [2021] TZCA 707 (1 December 2021; TanzLII) the court held: “So, on the principles set out in BHATT's and MURIMI's cases, we think that a prima facie case is made out if, unless shaken, it is sufficient to convict an accused person with the offence with which he is charged or kindred cognate minor one. Which means that at this stage, the prosecution is expected to have proved all the ingredients of the offence or minor, cognate one thereto, beyond reasonable doubt. If there is any gap, it is wrong to call upon the accused to give his defence so as to fill it in, as this would amount to shifting the burden of proof.” The procedure to be followed where a prima facie case is established in respect of cognate offence is illustrated in the case of Emmanuel Thomas @ Kasamwa vs Republic (Criminal Appeal No. 183 of 2019) [2021] TZCA 354 (30 July 2021) (TANZLII), at pages 7-8, the Court stated that: It has to be noted that this provision (section 231 of the CPA) gives option to the trial magistrate in case he or she finds that a prima facie case has been established to require the accused to make a defence in relation to the offence predicated under the provisions of sections 300 to 309 of the CPA, he is liable to be convicted. The 21 | P a g e court is required to explain the substance of the charge to the accused and inform him of his right to defend on oath or affirmation and to call witnesses. My perusal and analysis of the available evidence on record reveals that it is only a single aspect of the offences being originating from the same species or genus that was analysed properly. The rest two requirements were not met. Indeed, this was error on the part of the trial Court to convict on the cognate offence of grave sexual abuse in circumstances where there was no element of the lesser offence established. I shall conclude the analysis of this ground on proof of the offence and credibility of witness. As it was pointed out that prosecution rallied three witnesses, namely the victim, the victim’s father and the police officer who was an investigator in this case. Essentially, PW 1 and PW 2 testimonies focused on penetration of the victim’s anus by the male organ of the appellant. There is nothing more. The evidence on record reveals that PW 1 and PW 2 never testified to the insertion of the “kijiti” at the victim’s anus except the evidence of PW 3. It is categorically clear that evidence of PW 3 contradicts the evidence of both the victim and his father on the commission of the unnatural offence. Such evidence is not coherent with that of the 22 | P a g e victim. It could not prove the unnatural offence whose major element is penetration of the penis into one’s anus. Further, in respect of cognate offence of grave sexual abuse, the evidence is wanting. It is only the evidence of PW 3, the police officer which states about insertion of the “kijiti” in the victim’s anus. This was never the evidence of the victim or his father. It is the law that in offence of this nature, the evidence of the victim is paramount and any other witnesses’ evidence play a role of corroboration alone. In the case of Geofrey James Mahali vs The Director of Public Prosecutions (Criminal Appeal 332 of 2018) [2021] TZCA 504 (21 September 2021) (TANZLII), at page 15, the Court of Appeal reiterated that: We are aware that it is settled law that in sexual offences, the victim's evidence is the best, save where it is not credit worthy. (See- section 127 (7) of the Evidence Act and SELEMANI MAKUMBA VS REPUBLIC [2006] TLR 384). It is also settled law that assessing the demeanour of a witness is the domain of the trial court, the first and second appellate courts can assess the credibility of a witness in two ways namely: One, when assessing the coherence of the testimony of that witness, two, when the testimony is considered in relation to the evidence of other witnesses, including that of the accused person. 23 | P a g e Having analysed the evidence on record, it is settled view of this Court that the evidence of PW 1 is not credit worthy. It is untrue evidence as it is contradicted materially by evidence of PW 3. Essentially, evidence of PW 3 on cognate offence is not corroborating the evidence of the victim. Indeed, evidence of PW 3 makes the evidence of the victim so weak and disjointed to be relied upon to enter conviction in this case. It would appear from the record that the whole evidence is concoction of the prosecution against the appellant. Simple question is, how could a Senior State Attorney sign a charge whose evidence in record do not support the offence. It was evidence of PW 3 on page 18 of the typed proceedings when the victim was given PF 3 attend medical examination and treatment. The medical doctor who examined victim found there was no penetration but a scar on the victim’s anus. That evidence alone would have prevented prudent law enforcement agencies from preferring a charge on offence whose evidence is non-existing. More importantly, it was improper for the trial court to convict the appellant herein having observed on page 8 that the fact of inserting vijiti to trial court was a new fact which was never stated anyhow by any of prosecution witness and even during the PH. This finding alone warranted the acquittal of the accused person. However, the same Court proceeded to convict the appellant herein. 24 | P a g e To apply the guidance of the Court of Appeal in the case of Pascal Yoya @ Mganga vs Republic (Criminal Appeal No. 248 of 2017) [2021] TZCA 36 (24 February 2021) (TANZLII), at page 16, the Court of Appeal stated that: With respect, we find both conclusions by the lower courts unusual. It is a cardinal principle of criminal law in our jurisdiction that, in cases such as the one at hand, it is the prosecution that has a burden of proving its case beyond reasonable doubt. The burden never shifts to the accused. An accused only needs to raise some reasonable doubt on the prosecution case and he need not prove his innocence. From the foregoing analysis it is lucid that the case against the accused person either in the unnatural offence he stood charged or in the cognate offence of grave sexual abuse was not proved at all. There is no evidence on record to support the conviction of the appellant in the circumstances of the case. This ground alone was sufficient to dispose the appeal. However, I feel compelled to analyse the remaining ground for the reasons to be demonstrated in due course. On the second ground of appeal, the parties are at issue on defence evidence consideration during the composition of the judgment. 25 | P a g e In the case of Leonard Mwanashoka vs Republic (Criminal Appeal 226 of 2014) [2015] TZCA 294 (24 February 2015) (TANZLII), the Court of Appeal noted that: We have read carefully the judgment of the trial court and we are satisfied that the appellant's complaint was and still is well taken. The appellant's defence was not considered at all by the trial court in the evaluation of the evidence which we take to be the most crucial stage in judgment writing. Failure to evaluate or an improper evaluation of the evidence inevitably leads to wrong and/or biased conclusions or inferences resulting in miscarriages of justice. It is unfortunate that the first appellate judge fell into the same error and did not re- evaluate the entire evidence as she was duty bound to do. She did not even consider that defence case too. It is universally established jurisprudence that failure to consider the defence is fatal and usually vitiates the conviction. As such, it is a settled principle in this jurisdiction that failure to consider the defence evidence in course of decision-making results into nullity of the conviction. In the instant appeal, it was the evidence of the accused that on material date of alleged commission of the crime he was not at home as 26 | P a g e he went to collect “kifusi” at Ilege and on return home he went to bath. It is at that juncture, the victim’s father came and took the appellant to his home, beat him and asked why the appellant sodomised his child allegations that were denied by the appellant. It appears that appellant tried to raise a defence of alibi. This defence was rejected by the trial court on an account that it was an afterthought. The trial court stated at page 8 of the judgment that “since the accused person never disputed the offence he stands charged during hearing of his defence till when he was cross examined by prosecution hence he disputes the offence against him and that he never met with the victim on that particular date but to this court (trial court) this is an afterthought defence which he failed to prove it contrary because he even failed to dispute the offence at the first instance.” I am fully aware that the court has a discretion thus it is entitled to accord no weight or lesser weight to the defence of alibi that is raised in contravention of the law. This is as per principle stated in the case of Mohamed Hussein Pagweje vs Republic (Criminal Appeal 557 of 2017) [2021] TZCA 709 (1 December 2021) (TANZLII), at page 12, the Court of Appeal stated that: It was the appellant's claim that on the material night he was at Arusha. It is on record that the appellant raised this defence at the stage when the prosecution 27 | P a g e case had been closed hence in contravention of section 194 (4) and (5) of the CPA. In such circumstances and in terms of section 194 (6) of the CPA the trial court had to consider it but it had the discretion to accord it no weight or lesser weight- see Mwita s/o Mhere and Ibrahim Mhere v. R [2005] T.L.R. 107 and also Sijali Juma Kocho v. Republic [1994] T.L.R. 206. However, the above quoted part of holding in respect of the defence evidence is wanting. There are two reasons. One, it would appear that trial magistrate treated that defence evidence to mean and confined to evidence in chief only. Two, the holding tends to shift the burden of proof to the accused person. It is my understanding of law that evidence must be taken in its totality. Evidence of a witness is considered in toto from evidence in chief to re-examination stage if any. Evidence should not be taken in isolation. Thus, the defence evidence in totality entails the evidence given by the accused person during cross-examination. Treating the evidence of defence adducing during cross-examination as lesser to that made in chief is a misdirection on part of the trial court. Further, it is not a duty of the defence to prove its innocence in criminal cases. This was the principle in the case of Ronjino s/o Ramadhani @ Ronji & Others vs Republic (Criminal Appeal 75 of 28 | P a g e 2019) [2021] TZCA 288 (12 May 2021) (TANZLII), at pages 12-13, where the Court of Appeal reiterated that: It has also been alleged that the trial court did not consider the defence. With respect we disagree. Conversely, we think the trial court considered the defence but shifted the burden and required the appellants to prove their stories. It required the first appellant to have substantiated his story of bribe by mentioning the name of the police officer who demanded it. It required the third appellant to have proved his defence by calling one of the garage boys who had witnessed the allegation of theft of the client's camera. This approach was manifestly wrong because it has never been the duty of an accused to prove his innocence. This is an established principle and has been repeated in many of the Court's decisions. See for instance Mohamed Said Matula v. Republic [1995] T.L.R 3 and Hamisi Mbwana Msuya v. Republic, Criminal Appeal No. 73 of 2016 (unreported). It was the duty of the trial court to address if the defence evidence had introduced reasonable doubt in the prosecution case. Indeed, as per guidance of the Court of Appeal though the trial court considered the defence evidence, yet its consideration misapplied 29 | P a g e the law. It went aboard by shifting the burden of proof in contravention of the well-entrenched constitutional principle under Article 13(6) (b) of the Constitution of United Republic of Tanzania that no person charged with a criminal offence shall be treated as guilty of the offence until proved guilty of that offence. The role of the defence was to raise a reasonable doubt on the evidence of the prosecution that there might be someone else who did the act alleged to committed. In the case of Maganga s/o Udugali vs Republic (Criminal Appeal No. 144 of 2017) [2021] TZCA 639 (3 November 2021) (TANZLII), at page 24, the Court observed that: After all, all what an accused is required to do in his defence is to raise doubts on the evidence of the prosecution side. We think that the appellant managed to raise such doubts which ought to have gone to his benefit. The misapplication of the defence evidence does not serve the judgment from crumbling naturally for being wrongly arrived at. It is settled view of this Court that the conviction against the appellant was entered into in erroneously for the reasons stated in foregoing analysis. In totality of events, I am inclined to uphold the appeal for being meritoriously preferred. As such, I quash the conviction entered against the appellant for being erroneously arrived at in absence of proof the 30 | P a g e case against the accused person beyond reasonable doubts. Consequently, I set aside the sentence of twenty years imprisonment as well as the order to pay compensation to the victim upon completion of the imprisonment. The appellant shall be immediately released from custody unless his continuing detention is for any other reasonable cause. It is so ordered. DATED at DODOMA this 4th day of September 2024. E.E. LONGOPA JUDGE 4/09/2024. 31 | P a g e