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IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: NDIKA. 3.A.. MWAMPASHI. 3.A.. And MGEYEKWA. J.A.^ CRIMINAL APPEAL NO. 678 OF 2021 MCHANA S/O MOHAMED............................................................. APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Arusha) (Robert. J.^ dated the 12th day of November, 2021 in Criminal Appeal No. 50 of 2020 JUDGMENT OF THE COURT 6th & 13th August, 2024 NDIKA, J.A.: The appellant, Mchana Mohamed, challenges his conviction for unnatural offence and the life imprisonment sentence that was imposed on him by the District Court of Kiteto at Kibaya and subsequently upheld by the High Court of Tanzania at Arusha. He has filed nine grounds of appeal, arguing that the conviction was not only unwarranted by the evidence on record but also vitiated by procedural irregularities. We begin with the context in which the appeal has arisen: on 5th August, 2014 the trial court convicted and sentenced the appellant as alluded to above. He had been accused to have carnally known a girl aged three years, hereinafter "the complainant" against the order of nature on 22nd May, 2014 around 12:30 hours at Chekanao village within Kiteto District in Manyara Region. Having lost his initial appeal to the High Court (Criminal Appeal No. 50 of 2015), he appealed to this Court vide Criminal Appeal No. 301 of 2016. By its decision handed down on 12th October, 2018, the Court nullified the trial court's judgment for non-compliance with the dictates of sections 235 (1) and 312 (2) of the Criminal Procedure Act, Cap. 16 ("the CPA"). As a result, the Court remitted the record to the trial court for it to compose and deliver a judgment in accordance with the law. The trial court, in accordance with the order of this Court, composed and delivered a new judgment on 7th August, 2019, which again convicted the appellant of the charged offence and sentenced him to the mandatory life imprisonment. He was yet again unsuccessful in his appeal to the High Court. He has submitted this appeal, as he continues to maintain his innocence. The basic circumstances of the case were that the appellant and PW1 Hussein Mohamed were residing in the home of the complainant's parents in Chekanao village. The appellant was employed as a casual labourer by the family at the relevant period, where he was responsible for the execution of specific construction works. PW1 visited Kijiweni to purchase vegetables at approximately 12:00 hours on 22nd May, 2014. Upon his return home a few moments later, he discovered that the main door of the home in which he and the appellant were residing was locked from the inside. He entered the home by flipping the bolt with a knife and discovered the complainant in a state of agony, ensnared in a mixture of blood and faeces. The appellant was also in the room, and he was adjusting himself by drawing up his trousers, which appeared to have been lowered. PW1 enquired about the appellant's actions; however, the appellant was tight-lipped. PW1 exited the building, secured the door behind him, and raised an alarm. The appellant was apprehended by several individuals who responded to the alarm by rushing to the location. He was taken to the village offices in conjunction with the complainant. The appellant was duly arrested and remanded in custody after a formal complaint was lodged at Matui Police Post. Subsequently, the police issued a request for medical examination (PF3 form) to the complainant's mother (PW3), requesting that she convey the complainant to the hospital for examination and treatment. The complainant was examined by PW2 Datus Mahatane, a Clinical Officer, at Kibaya Government Hospital at approximately 18:30 hours on the same day. In a medical examination report (exhibit PI), he reported that the child was in "very severe pain in the anai area"and had lacerated bruises and redness around the anai area with blood stains. "He observed that the complainant's anus bore a 50-millimeter-deep wound that was indicative of a blunt object having aggressively penetrated the anus. The garment (exhibit P2) that the complainant wore on the fateful day, as well as a cautioned statement the appellant allegedly made during interrogation (exhibit P3), confessing to the crime, were presented by WP.3176 Detective Corporal Zaina (PW4), a police investigator. In addition to the cautioned statement, the complainant's mother (PW3) informed the trial court that the appellant acknowledged liability but attributed the transgression to Satan. In his defence on oath, the appellant acknowledged that he was present at the site of the crime with the complainant at the relevant time. The most revealing aspect of his story was that he abruptly felt the desire to engage in sexual intercourse with the child after negative thoughts had entered his mind. He further stated that he was unable to resist the urge and that, in the end, he regretted having sex with the infant, which was contrary to the natural order. Faeces mingled with blood exited the complainant's anal orifice because of the sexual act. The appellant was found guilty as charged by the trial court and sentenced to life imprisonment, as previously specified. The High Court upheld this decision, which is now the basis for this appeal. As previously mentioned, the appellant has based his appeal on nine grounds of grievance, the essence of which are six complaints: the first is that there is a discrepancy between the charge and the evidence regarding the crime site. Secondly, that the complainant's age was ambiguous, as it was either two or three years. Thirdly, that exhibit PI was unreliable and improperly admitted. Fourthly, that exhibit P3 was unreliable and unlawful. Fifthly, that the testimony of the star witness (PW1) was inconsistent and unreliable. Lastly, the trial court neglected to apply the insanity procedure. The appellant, who was self-represented, merely requested that we allow his appeal, without any further explanation. The appeal was resisted with determination by Ms. Mary Lucas, learned Principal State Attorney, who was accompanied by Ms. Blandina Msawa, learned Senior State Attorney, and Ms. Mwanaidi Chuma, learned State Attorney, on behalf of the respondent. It is logical and convenient to begin with the third and fourth grounds of appeal. The assertion in the said grounds that the medical examination report and the cautioned statement attributed to the appellant (exhibits PI and P3, respectively) were illegal and unreliable is clearly misconceived, as Ms. Lucas has correctly argued. The appellant's submission that the contents of the aforementioned documents were not read out at the trial after they were admitted was upheld by the learned Judge on the first appeal, as evidenced by page 95 of the record of appeal. Consequently, the documents were expunged from the record. The basis for this determination was the principle established in Robinson Mwanjisi & 3 Others v. Republic [2003] T.L.R. 218, which stipulates that the contents of every documentary exhibit that has been cleared for admission and admitted in evidence must be read out to inform the party against whom the document is sought to be proven of its contents. Failure to do so has been declared fatal, rendering the document in question susceptible to discounting. We dismiss the third and fourth grounds of grievance, as exhibits PI and P3 are no longer the evidence that supports the appellant's conviction. The complaint in the first ground of appeal, which alleges that the charge and the evidence differed in terms of the crime scene, is equally untenable. It is evident from PWl's testimony, as documented on pages 4 and 5 of the record of appeal, that the offence occurred in Chekanao village at the residence that the witness shared with the appellant, as we concur with Ms. Lucas. In his defence, the appellant acknowledged this fact. Consequently, the evidence that was available regarding the crime's location was consistent with the information provided in the charge sheet. The offence that was charged took place in the village of Chekanao. The first ground also fails. We now address the protestation in the sixth ground, which we believe is an afterthought. The appellant ought to have raised the defence of insanity at the time of his arraignment before the trial court, in accordance with section 219 (1) of the CPA. It is documented that he did not raise this issue during plea taking or during the first appeal. Naturally, we are cognisant of the fact that the trial court had the authority to investigate the appellant's mental health and his ability to defend himself during the trial if it had determined that he was of disordered mind, in accordance with sections 216, 217, and 218 of the CPA. That aspect is not reflected in the transcript. Undoubtedly, the trial court conducted the proceedings as a standard trial due to the appellant's apparent sanity and ability to defend himself. On this basis, the trial court cannot be held accountable for failing to adhere to the procedure outlined in sections 216 through 220 of the CPA. Ground 2 enquires as to whether the complainant's age was proved. Ms. Lucas directed us to page 8 of the record of appeal, contending that the complainant's mother (PW3) stated that the complainant was born in June 2012, which would indicate that he was nearly two years old when he was sexually abused on 22nd May, 2014. At the trial, this fact was not disputed. In reality, the appellant declined the opportunity to cross-examine PW3 8 regarding any aspect of her testimony. We, therefore, hold that the second ground 2 is also devoid of merit. Similarly, the fifth ground of appeal, which seeks to impeach the credibility of PW1 and the consistency and reliability of his testimony, is ill- conceived. We concur with the assertion by Ms. Lucas that PWl's evidence was not compromised during cross-examination and that it was graphic, coherent and cogent regarding his discovery of the appellant amid committing the repulsive carnal act on the helpless infant. The appellant's unreserved confession to the offence in his defence is of the utmost importance, as previously mentioned. Apart from his admission that he had committed the depraved and brutish act on the vulnerable infant, he also unashamedly described the mess he had caused. The immoral act yielded faeces intermingled with blood that emerged from the complainant's anal orifice. Inevitably, the fifth ground of appeal lacks merit. Ultimately, we are satisfied that the appellant was duly convicted of the offence laid under section 154 (1) (a) of the Penal Code ("the Code"), due to the impeccable evidence that he caused his manhood to penetrate the anus of the two-year-old girl. We are also persuaded that the mandatory life imprisonment was imposed in accordance with the dictates of section 154 (2) of the Code, as the offence was committed on a child under the age of eighteen. In the end, we dismiss the appeal for want of substance. DATED at ARUSHA this 9th day of August, 2024. G. A. M. NDIKA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL A. G. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 13th day of August, 2024 in the presence of the Appellant in person, and Mr. Godfrey Nugu, learned State Attorney for the Respondent, is hereby certified as a true copy of the original.