MBAROUK NICHOLOUS HAMIS MBALU V REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (TABORA SUB-REGISTRY) ATTABORA DC. CRIMINAL APPEAL NO. 22133 OF 2024 (From the District Court of Tabora, Original Criminal Case No. 78 of2023) MBAROUK NICHOLOUS @ HAMIS @ MBALU ......... APPELLANT VERSUS THE REPUBLIC....................... .............................. RESPONDENT JUDGMENT Date of Last Order: 4/11/2024 Date ofJudgment: 5/02/2025 KADILU, J. Before the District Court of Tabora, the appellant was convicted of an unnatural offence contrary to Section 154 (1) (a) and (2) of the Penal Code [Cap. 16, R.E. 2022], The prosecution alleged that on 04/09/2023 at Ndevelwa area within Tabora Municipality in Tabora Region, the appellant had carnal knowledge of a male child aged 04 years against the order of nature. Upon full trial, the appellant was sentenced to life imprisonment and ordered to pay the victim TZS. 500,000/= as compensation. Aggrieved by the conviction and sentence, he filed this appeal consisting of the following g rounds : 1. That, the trial Magistrate erred in law and facts by convicting the appellant based on contradictory statements ofPWl, PW2, and the facts read at the preliminary hearing as to the time of the commission of the alleged offence. 2. That, the trial Magistrate wrongly received the evidence ofPW7and PW4 who were not listed during the preliminary hearing and no notice of additional witnesses was filed by the prosecution. i 3. That, Exhibits Pl and P2 were wrongly admitted as they were not read aloud for the appellantto know their contents. 4. That, the case against the appellant was hot proved beyond reasonable doubt as required by the law. On the strength of the above grounds, the appellant prayed for the appeal to be allowed by quashing the conviction, setting aside the sentence, and ordering the appellant's release from prison custody. During the hearing of the appeal, the appellant appeared in person without legal representation while Ms. Aziza Mfinanga, State Attorney represented the respondent. The appellant requested the learned State Attorney to submit first so he could reply. Submitting on the 1st ground of appeal, Ms. Aziza conceded that there is a contradiction between the facts prepared by the Republic under Section 192 of the Criminal Procedure Act, and the testimonies given by PW1 and PW2. However, she argued that what the prosecution was bound to prove was the charge sheet, not the facts adduced during the preliminary hearing. She added that the appellant has not shown how the alleged contradiction has prejudiced him. Concerning the 2rd ground of appeal, she submitted that PW4 was not listed during the preliminary hearing but PW7's force number is on the list. The learned State Attorney expounded that it is not the requirement of the law to list names of witnesses during the preliminary hearing although it has been the practice of the trial courts. She referred to the case of John Mohamed v. R., Criminal Appeal No. 144 of 2021, in which the Court of Appeal at Mbeya held that the prosecution is not prohibited from calling any 2 witness who was not listed during the preliminary hearing. Ms. Aziza contended that in subordinate courts, there is no requirement to give notice where the prosecution wishes to summon a witness who was not listed during the preliminary hearing. The practice applies to trials before the High Court only. About the 3rd ground, Ms. Aziza explained that Exhibit Pl was a PF3 of the victim and Exhibit P2 was the appellant's cautioned statement. The law indeed requires exhibits to be cleared for admission and after the admission, the contents should be read aloud in court. She said in the case at hand, the appellant's complaint is baseless because both Exhibits Pl and P2 were read out as reflected in the proceedings of the trial court. Regarding the 4th ground of appeal, the learned Counsel submitted that the prosecution proved the case against the appellant beyond reasonable doubt since it established the penetration of the victim by the appellant against the order of nature. The prosecution summoned the victim and 6 other witnesses and tendered 2 documentary Exhibits whose admission was not objected to by the appellant. The victim showed how the appellant had carnal knowledge of him against the order of nature. The remaining witnesses corroborated the evidence of the victim as shown in the proceedings of the trial court. Ms. Aziza cited the case of Efeso Wasita r, /?v Criminal Appeal No. 408 of 2020, Court of Appeal at Mbeya where it was stated that in sexual offences, the best evidence comes from the victim. The victim named the appellant early making his credibility high. The State Attorney argued that since the appellant did not object to the admission of his cautioned statement 3 in which he admitted to having committed the offence, he cannot assert now that the offence was not proved to the standard. He also admitted to the charge in the early stages in which he prayed for the mercy of the court as he committed the charged offence while drunk, in Nuru Mtangi v. R., Criminal Appeal No. 132 of 2016, the Court of Appeal at Mtwara held that a confession made in court is the best proof. When the appellant was allowed to submit on the grounds of appeal, he prayed for the court to adopt his petition of appeal and decide the case as he had nothing to add. I have gone through the records, the grounds of appeal and considered the submissions by the parties. Now the task before me is to determine the appeal. Starting with the 1st ground, the appellant alleges that there are discrepancies in the time of the commission of the offence. The record reveals that the facts read to the appellant during the preliminary hearing indicated that the appellant committed the offence at noon. PW1 stated that she started looking for the victim at 10:00hrs. PW2 testified that on 04/09/2023 during morning hours, she heard PW1 scolding the victim. Given these facts, I am unable to agree with the appellant that there was a serious contradiction that goes to the root of the case. Whether he committed the charged offence at noon or 10:00hrs, does not take away the truth that he committed it. Regarding the 2rd ground of appeal, the appellant contends that PW4 and PW7 were not listed as prosecution witnesses during the preliminary hearing. PW7 was listed during the preliminary hearing as WP 7093, D/CPL Loveness. During the testimony, she introduced herself as WP 7093, D/CPL 4 Agness. There was likely a slip of the pen by the court in recording the name of PW7 but in Tanzania, police officers are identified by their force numbers, not names. Indeed, PW4 was not listed during the preliminary hearing. All the same. The learned State Attorney has put it rightly that listing the names of witnesses in subordinate courts is not a legal requirement, and there is no room for giving notice to add some witnesses. Thus, the 2nd ground of appeal is dismissed for being baseless. I also hasten to dismiss the 3rd ground of appeal for being untrue. The appellant alleges that exhibits Pl and P2 were not read out. From the records, Exhibit Pl was tendered by PW5 as shown on page 16 of the proceedings: "PW5: "I filled out a PF3. I will recognize it by my handwriting, signature, and seal of the hospital." StateAttorney: "I pray to hand over a PF3 to the witness. "Court: "PF3 has been handed over to the witness. "PW5: "This is a PF31 was talking about. It has the features I have explained. I pray to tender it as an exhibit." Court:" PF3 has been handed over to the accused person." Accused:" I have no objection." Court; "PF3 has been admitted as exhibit Pl. PW5: "Ipray to read the PF3. "Court:" The PF3 has been read aloud in court by PW5. "PW5: "That is all." Exhibit P2 was tendered by PW7 in the same style as indicated on pages 20 - 21 of the trial court's proceedings. In this regard, the appellant's complaint that the exhibits were not read out has no legal base and I dismiss it accordingly. Whether the case against the appellant was proved beyond reasonable doubt or hot, this ground will not take much of my time as I have already demonstrated above. Immediately after the arrest, the appellant's cautioned .5 statement was recorded by PW7. He voluntarily elaborated on how he committed the charged offence. In his defence, the appellant stated that PW7 did not torture him before recording his statement. He neither objected to the admission of the cautioned statement nor did he cross-examine any prosecution witness. When the charge was first read over to the appellant, he pleaded guilty and requested for court's mercy allegedly because he committed the offence while drunk. This fact is in line with what he had stated previously in his cautioned statement, and during the hearing of the appeal, he failed to say anything regarding his grounds of appeal. In Isaya Athanas v. R., Criminal Appeal No. 435 of 2021, the Court of Appeal at Tabora while considering the weight of a confession made in court observed as follows: "If there was a cherry on the cake, it was that confession in court. A confession made in court is ofgreater effect than any other proof. With that piece of evidence, nothing more could have proved the prosecution case beyond reasonable doubt, if not the confession before the court..." From the foregoing analysis, I have no hesitation in ruling out like the trial court that the prosecution proved the case against the appellant beyond reasonable doubt. I, thus, dismiss the entire appeal for lack of merit. The right of appeal is fully explained to any aggrieved party. Order accordingly. JUDGE 5/02/2025 6 Judgment delivered in chamber on the 5th day of February, 2025 in the presence of Mbarouk Nicholous, the appellant, and Ms. Suzan Barnabas, State Attorney for the respondent. KADILU, M. J. JUDGE 5/02/2025 7