Matemanga

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB - REGISTRY)

AT MOROGORO CRIMINAL APPEAL NO. 17303 OF 2024 (Originating from the decision of the District Court of Kilombero at Ifakara in Criminal Case No. 123 of 2023, dated 27^ March 2024)

MENLIK MATEMANGA APPELLANT

VERSUS REPUBLIC. RESPONDENT

JUDGMENT 18/11/2024 & 28/11/2024 KINYAKA,3.: On 19^ October, 2023, the appellant herein appeared before the District Court of Kilombero herein "the trial court" where he was charged with the offence of unnatural offence contrary to section 154 (1)(a) and (2) of the Penal Code Cap 16 R.E.

2022. It was alleged that on the 25^ day of September 2023 at Site area, Kibaoni Ward, within Kilombero District in Morogoro Region, the appellant had carnal knowledge of a male child of 12 years of age, one PK (name withheld) against the order of nature. The appellant denied the allegations. As a result, the prosecution lined up six witnesses in order to substantiate the appellant's ^ <br- alleged Involvement in the commission of the said offence. From the totality of the witnesses' testimonies, what led to the prosecution's accusations against the appellant in relation to the charges he was feeing is as summarized below. The victim was by then an eleven years old boy studying at Site Primary School as a standard three student. On the 25^ day of September 2023, PW2 and his fellows, Emmanuel and Andrew while on their way back home from school, they headed to a tap to drink water. Upon drinking the water, his fellows left the place but PW2 remained alone at the place fetching water. According to him, the appellant who seemed to be in a hurry came at the place, held his hands and dragged him to an unfinished house. He thereafter took off PW2's clothes, loosen his belt, took out his male organ and inserted the same six times in the victim's anus while holding the victim's mouth so that he couldn't shout. It was his further testimony that the appellant ran away after quenching

his sexual desire. It was Emmanuel, the victim's co-student who took the victim to their school head teacher and narrated to the teacher as to what had happened to the victim. PWl, the victim's father told the trial court that he was informed of what befell his son by one Mrisho. In response, he went in a hurry to a place where the victim was and took him to the nearby police station where he was Issued with the PF3. The victim's medical examination was conducted at St. Francis Flospital by PW3, Gabriel Nalaila, assistant medical doctor who informed the trial court that in his examination of the victim's anus, he found the same with fresh bruises and that the sphincter muscles were loose a little. Fie opined that from its appearance, it was clear to him that a blunt object was forced to enter therein. Fie thereafter filled the PF3 which was admitted as Exhibit PE 2 and handed over the same to PWl who took it back to the police station. According to the evidence on record, the conduct of the investigation of the matter was assigned to PW5, WP 956 DSGT Fiadija. In her testimony, PW5 elaborated that in her investigation of the matter she took the witnesses statements and informed the trial court that the accused and his fellow were arrested while the investigations were underway. She further informed the court that the two suspects were interrogated. An identification parade

was then prepared by PW4, PF 22039 A/INSP Edwin Kipimo and conducted at the Ifakara Police Station where the victim identified the appellant as the 3 culprit as evidenced in the identification register tendered and admitted in evidence as Exhibit PE 3. The appellant v^as thereafter arraigned before the trial court where as indicated earlier, he vehemently denied the charge against him. In his sworn defence, he insisted that he was not the one who sodomized the victim as on the alleged date of incident, he was at his home place and that he went nowhere. He however admitted to know the victim and to have been arrested on 26^ September 2023 after the victim had pointed him and his friend Frank Chuma as the ones who committed the offence against him. In his further defence testimony, the appellant attacked the prosecution for their failure to summon as a witness the person who informed the victim's father about the Incidence rendering the prosecution evidence one sided. He further attacked the evidence of the medical doctor (PW3) who according to him, through his evidence it was revealed that he did not use scientific tools but rather his naked eyes in examining the victim's private parts which were alleged to have been penetrated. He also complained that he was not medically examined as the law demands. Amongst the evidence from the two sides at the trial, the trial court

believed the prosecution's version to be true. Irrespective of its expunction of the evidence of PW4, PW5 and PW6 in relation to the identification parade, the trial court entered conviction against the appellant upon being satisfied that the age of the victim was proved by PWl's tendering of the victim's birth certificate indicating that he was aged eleven years old at the time he was sodomized; that the reporting of the incidence was made at the earliest possible time; that PW3 managed to establish that the victim's anus was penetrated; and lastly, PW2's account that it was the appellant's male organ that had penetrated his anus. In consequence, the appellant was sentenced to serve a life imprisonment in jail. Unhappy with the trial court's verdict, the appellant lodged the instant appeal seeking to assail the trial court's conviction and sentence imposed on him basing on the following grounds of appeal: 1. That the trial magistrate erred both in law and upon facts by convicting the appellant basing on the evidence of a child who couldn't identify the person who sodomized him. At the area there is a lot youngmen with dread locks (rasta). Considering the age of PK,there is likely hood chances of mistaken identification. Such evidence of a tender aged witness needed corroboration before its admissibility which led to conviction. The principle in ELIAS KTTALEMA vs R.(2008)TLR

141 was wrongly applied in this matter as it led to unfair conviction to appellant; 2. That the trial magistrate again erred in law and facts when misdirected her mind in reasoning and admitting the evidence of PK (the victim) who gave contradictory evidence which had never corroborated or clearly identify appellant as the one and the only person who sodomized him. The victim mentioned FRANK as the one who sodomized him and identified him with his dread locks. Frank was released at the police and the case came to my side just because I had dread locks too. Your Honourable Judge, the case against appellant was not proved beyond reasonable doubts as provided for under section 3(2)(a) of the Evidence Act cap 6 R.E 2002; 3, That the trial magistrate erred in law and facts when relying on the evidence of PW2 who identified accused as MUUZA CHIPS while am not. My job is just a DJ at the bar and bodaboda rider. Your honour, the case against appellant is coached one considering that PK himself informed the court that his brother DANIEL sodomized him once

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB - REGISTRY)

AT MOROGORO CRIMINAL APPEAL NO. 17303 OF 2024 (Originating from the decision of the District Court of Kilombero at Ifakara in Criminal Case No. 123 of 2023, dated 27^^ March 2024) MENLIK MATEMANGA .....APPELLANT

VERSUS

REPUBLIC RESPONDENT

JUDGMENT 18/11/2024 & 28/11/2024 KINYAKA,3.: On 19^ October, 2023, the appellant herein appeared before the District Court of Kilombero herein "the trial court" where he was charged with the offence of unnatural offence contrary to section 154(1)(a) and (2) of the Penal Code Cap 16 R.E.

2022. It was alleged that on the 25*^ day of September 2023 at Site area, Kibaoni Ward, within Kilombero District in Morogoro Region, the appellant had carnal knowledge of a male child of 12 years of age, one PK (name withheld) against the order of nature. The appellant denied the allegations. As a result, the prosecution lined up six witnesses in order to substantiate the appellant's ^ <b^ alleged involvement In the commission of the said offence. From the totality of the witnesses' testimonies, what led to the prosecution's accusations against the appellant in relation to the charges he was facing Is as summarized below. The victim was by then an eleven years old boy studying at Site Primary School as a standard three student. On the 25^ day of September 2023, PW2 and his fellows, Emmanuel and Andrew while on their way back home from school, they headed to a tap to drink water. Upon drinking the water, his fellows left the place but PW2 remained alone at the place fetching water. According to him, the appellant who seemed to be in a hurry came at the place, held his hands and dragged him to an unfinished house. He thereafter took off PW2's clothes, loosen his belt, took out his male organ and inserted the same six times in the victim's anus while holding the victim's mouth so that he couldn't shout. It was his further testimony that the appellant ran away after quenching

his sexual desire. It was Emmanuel, the victim's co-student who took the victim to their school head teacher and narrated to the teacher as to what had happened to the victim. PWl, the victim's father told the trial court that he was informed of what befell his son by one Mrisho. In response, he went in a hurry to a place where the victim was and took him to the nearby police station where he was issued with the PF3. The victim's medical examination was conducted at St. Francis Hospital by PW3, Gabriel Nalaila, assistant medical doctor who informed the trial court that in his examination of the victim's anus, he found the same with fresh bruises and that the sphincter muscles were loose a little. He opined that from its appearance, it was clear to him that a blunt object was forced to enter therein. He thereafter filled the PF3 which was admitted as Exhibit PE 2 and handed over the same to PWl who took it back to the police station. According to the evidence on record, the conduct of the investigation of the matter was assigned to PW5, WP 956 DSGT Hadija. In her testimony, PW5 elaborated that in her investigation of the matter she took the witnesses statements and informed the trial court that the accused and his fellow were arrested while the investigations were underway. She further informed the court that the two suspects were interrogated. An Identification parade was then

prepared by PW4, PF 22039 A/INSP Edwin Kipimo and conducted at the Ifakara Police Station where the victim identified the appellant as the culprit as evidenced in the identification register tendered and admitted in evidence as Exhibit PE 3. The appellant was thereafter arraigned before the trial court where as indicated earlier, he vehemently denied the charge against him. In his sworn defence, he insisted that he was not the one who sodomized the victim as on the alleged date of incident, he was at his home place and that he went nowhere. He however admitted to know the victim and to have been arrested on 26^ September 2023 after the victim had pointed him and his friend Frank Chuma as the ones who committed the offence against him. In his further defence testimony, the appellant attacked the prosecution for their failure to summon as a witness the person who informed the victim's father about the incidence rendering the prosecution evidence one sided. He further attacked the evidence of the medical doctor (PW3) who according to him, through his evidence it was revealed that he did not use scientific tools but rather his naked eyes in examining the victim's private parts which were alleged to have been penetrated. He also complained that he was not medically examined as the law demands. Amongst the evidence from the two sides at the trial, the trial court believed the

prosecution's version to be true. Irrespective of its expunction of the evidence of PW4, PW5 and PW6 in relation to the identification parade, the trial court entered conviction against the appellant upon being satisfied that the age of the victim was proved by PWl's tendering of the victim's birth certificate indicating that he was aged eleven years old at the time he was sodomized; that the reporting of the incidence was made at the earliest possible time; that PW3 managed to establish that the victim's anus was penetrated; and lastly, PW2's account that it was the appellant's male organ that had penetrated his anus. In consequence, the appellant was sentenced to serve a life imprisonment in jail. Unhappy with the trial court's verdict, the appellant lodged the instant appeal seeking to assail the trial court's conviction and sentence imposed on him basing on the following grounds of appeal: 1. That the trial magistrate erred both in law and upon facts by convicting the appellant basing on the evidence of a child who couldn't identify the person who sodomized him. At the area there is a lot youngmen with dread locks (rasta). Considering the age of PK,there is likely hood chances of mistaken identification. Such evidence of a tender aged witness needed corroboration before its admissibility which led to conviction. The principle in ELIAS KTTALEMA vs R.(2008)TLR 141 was wrongly

applied in this matter as it led to unfair conviction to appellant; 2. That the trial magistrate again erred in law and facts when misdirected her mind in reasoning and admitting the evidence of PK (the victim) who gave contradictory evidence which had never corroborated or clearly identify appellant as the one and the only person who sodomized him. The victim mentioned FRANK as the one who sodomized him and identified him with his dread locks. Frank was released at the police and the case came to my side just because I had dread locks too. Your Honourable Judge, the case against appellant was not proved beyond reasonable doubts as provided for under section 3(2)(a) of the Evidence Act cap 6 R.E 2002; 3. That the trial magistrate erred in law and facts when relying on the evidence of PW2 who identified accused as MUUZA CHIPS while am not. My job is just a DJ at the bar and bodaboda rider. Your honour, the case against appellant is coached one considering that PK himself informed the court that his brother DANIEL sodomized him once showing that the penetration found by the Doctor on examination was caused by Daniel. May it pleases your honour page 12 of the proceedings, support this; 4. That the prosecution has never tendered cautioned statement of the appellant during the trial. This tells that the case against appellant is fabricated and such omission had affected the case

from the beginning; 5. That the appellant was freely held compared to prosecution who paraded a number of witnesses. This shows that, my right to be heard was denied contravening the cardinal principles of natural justice saying that the trial process was not fair. The appellant also lodged before this Court a supplementary petition of appeal adding five more grounds of appeal listed hereunder: 1. That the learned trial magistrate erred In law and fact in upholding the appellant conviction based on the evidence of PW2(victim) whose age was tender without suffidentiy complying with provision of section 127(2) of the Evidence Act, Cap 6 R.E 2022, the omission which renders the evidence nullity; 2. That the learned trial magistrate erred in law and in fact in upholding the appellant conviction based on the evidence of PW2 whose testimony was barely incredible, improbable, untruthful, and unreliable to warrant the appellant conviction; 3. That the learned trial magistrate erred in law and in fact in convicting and sentence the appellant while failed to warn the appellant layman the danger of not objecting to Exh PEl and Exh PE2 collectively during trial; 4. That the learned trial magistrate erred in law and in fact in convicting and sentencing the appellant by failing to draw an adverse inference on the prosecution for failure to summon a material witness PW2 fellows(Emmanuel and

Andrew)to test if in court to prove the veracity of PW2; and 5. That the learned trial magistrate erred in law and in fact in convicting and sentence the appellant while the same wrongly disregarded and/or reject the appellant defence. At the hearing of the appeal, the appellant appeared in person. He prayed for the Court to receive and consider his grounds of appeal, allow the same and set him free. On the other hand, the Respondent enjoyed the services of Mr. Shabani Kabelwa, learned state attorney who at the onset declared his opposition to the appeal. Submitting against the 1^, 2"*^, and 3^^ grounds which he opted to consolidate, Mr. Kabelwa supported the decision of the trial court in relation to the identification of the appellant by the victim. He said, as the appellant and the victim knew each other, the victim could not have made a mistake to identify him. Reference was made on page 2 and 3 of the judgement of trial court where the trial court evaluated the evidence of the victim on how the victim knew the appellant, on page 36 of the proceedings, where the appellant confirmed during cross examination that he knew the victim and on page 11 through 13 of the proceedings where the victim stated how he knew the appellant and the times that the incidents occurred. It was therefore his submission that there was no any reason for the victim to have mistakenly identified the

appellant as articulated by the Court of Appeal in the case of Stephen Tliphone Boba v. R., Criminal Appeal No. 389 of 2022 [2024] TZCA 448(12 June 2024), on page 14 and 15. He concluded that the appellant was properly identified. Against the fourth ground, It was the counsel's submission that failure to tender caution statement cannot impair the prosecution case as in its judgement, the trial court found that the prosecution managed to prove the offence against the appellant and that the evidence of the prosecution witnesses was reliable. He further argued that the prosecution have a right to choose the type of the witnesses and exhibits to use in court in order to prove the offence. He cited the case Justine Hamis Juma Chamashine V. R-, Criminal Appeal No. 669 of 2021 [2023] TZCA 214, to cement his assertion that as PW2 credible and his testimony was reliable, the non- production of the caution statement did not weaken the prosecution case. As regards to the fifth ground, Mr. Kabelwa contended that the appellant was accorded with the right to defend the charge as reflected on page 34 to 36 of the proceedings and that he was allowed to bring more witnesses but he chose to close his case. He said, the trial was fairly conducted as reflected in the trial court's record which cannot be easily impeached as the same reflect what transpired in court as held in the case of Oscar John

Bosco & Another v. R, Criminal Appeal No. 140 of 2018(2022)TZCA 279. As regards to the first ground in his supplementary petition of appeal, Mr. Kabelwa admitted that there is no record of questions PW2 was asked by 10 the court before he made the promise to speak the truth. He however contended that failure by the trial court to comply with section 127(2) of the Evidence Act could not lead to unreliability or incredible testimony of the victim. He referred the court to the case of Felick Kilipasi v. R., Criminal Appeal No. 260 of 2021 on page 10 to 13 of the decision, where the Court of Appeal analyzed section 127(2) of the Evidence Act and held that even if the provision is contravened, the victim's testimony will be reliable if the court is satisfied that the victim is telling nothing but the truth. The learned state attorney prayed for the dismissal of the ground as to him, PW2 was a credible witness and his testimony was reliable. On the second ground. It was submitted by Mr. Kabelwa that the testimony of PW2 was reliable as observed on page 4 of the judgement of the trial court. The learned state counsel added that the testimony of PW2 has been corroborated by the testimony of PWl, PW3, and PW5, thus it is clear that PW2's testimony was reliable. He prayed for dismissal of the ground of appeal. In relation to the third ground, Mr. Kabelwa drew the attention of the

Court on page 9 and 20 of the proceedings where Exhibit PEl and PE2 were 11 admitted without objection from the appellant He remarked that there is no any provision of law that require the court to warn the accused on the danger of the receipt of exhibits without being objected to by the accused. He cemented that ail the exhibits admitted in evidence complied with authenticity, materiality and relevancy and that the appellant was not prejudiced. Opposing the fourth ground, Mr. Kabelwa submitted that there is no any gap in the prosecution case for failure to summon as witnesses Emmanuel and Andrew who were with the victim at the scene of crime. In his view, even If the two witnesses were called to testify, it would not change the prosecution proof of the offence against the appellant. He cited the case of Azizi Abdallah v. R., (1991) TLR 71 where the Court stated that a material witness is a witness called to fill in gaps or to explain an important point raised when the other witnesses are testifying. He said, in the present case, the two witnesses were not material and their absence have not impaired the prosecution case. As to the fifth ground of appeal, the learned state attorney admitted that the judgement of the trial court does not speak of the appellant's testimony 12 in which the appellant denied to have been at the crime scene. It was his view that although there is no

notice of alibi, the trial court had a duty to analyze the evidence of the defence. He therefore relied on the case of Oscar Justinian Burugu v. R. Criminal Appeal No. 33 of 2017[2020]TZCA 1873, to make a prayer for this Court being the first appellate court, to step into the shoes of the trial court and evaluate the defence evidence. He further prayed for the Court to disregard the defence evidence as the defence of alibi was relied upon by the appellant without notice to rely on such defence. In the end, Mr. Kabelwa urged the Court to dismiss the appeal and uphold the conviction and sentence of the appellant by the trial court. In his rejoinder submission, the appellant prayed for the Court to consider his grounds of appeal and finally set him free. The closure of the submissions by the parties enjoins me to decide on whether the trial court's conviction and sentence was Incorrect. I will take the course taken by Mr. Kabelwa in deliberating on the grounds of appeal by consolidating the 1^, 2"^ and 3'"'' grounds in the petition of appeal and deliberate on the remaining grounds in the petition of appeal and the supplementary petition of appeal separately. 13 The 1^, 2"^ and 3^^^ grounds of appeal are the appellant's complaint that the victim could not identify the person who sodomized him as there was no proper identification of him by the victim. He complained that there

were many youngmen with dreadlocks; that the victim named Daniel who is his brother, and Frank as other persons who sodomized him; and identified the appellant as chips seller while he is DJ at a bar and a motor rider. I have thoroughly read the testimony of PW2, the victim. On page 11 of the typed proceedings, the victim testified that while taking water on a tap, he turned around and saw Menlik. It is on record that the date of incident was not the first time the two encountered. The victim knew the appellant before. On page 12 of the typed proceedings, the victim testified: "Menlik is a chips seiier at Mficheni, it was not the first time on that day at unfinished house; he did it three times before that day, that he found me at Mficheni whereI went to buy a pen, he hold my hand to his house and do it three times, it was Mhrs when I was from school; there was nobody around; that day I told mama Jovan who told me to wait for my father, when he came mama toid him and he took me hospital. Also brother Daniel once did it to me'' 14 Not only the victim, but also the appellant who testified as DWl on page 34 of the typed proceedings, confirmed that he knew the victim and his father as they used to go where he worked. The totaiity of evidence of PWl and DWl confirms that there was no mistaken identification of the appellant by the victim. More so, the victim was very consistent in

assuring the triai court that it was the appeliant who sodomized him even when cross examined by the appellant and reexamined as reflected on page 13 and 14 of the proceedings, respectively. I have also considered the argument that the victim named Daniei and Frank. It is true that the victim testified on page 12 of the typed proceedings that his brother Daniel once did the same to him. Though he did not speak of the particulars, it is clear from the victim's testimony that his brother Daniel had sodomized him once. This means that it was not on the date of the crime the subject matter of the charge and proceedings before the trial court. Again, whether Daniei sodomized the victim or not, does not exonerate the appellant from the fact he sodomized the victim. 15 The above also applies to Frank. Even if Frank sodomized the victim, it does not make the appellant's act of sodomizing the victim right. I find no merit in the 1^, 2™*, and 3^^ grounds of appeal and I dismiss them. The 4*^ ground of the petition of appeal is a complaint on failure by the prosecution to tender caution statement during the trial. I do not find merit in the ground. I agree with Mr. Kabelwa that the prosecution is at liberty to present the evidence she finds would prove her case. I find that in the presence of the victim's evidence together with proof by PW3 and Exhibit PE2,the medical examination

report(PF3),the absence of caution statement did not impair the prosecution case. I have no reason to find that the prosecution case was fabricated as contended by the appellant[See the case of Justine Bruno @ Mkandamambwe v. The Director of Public Prosecutions, Criminal Appeal No. 323 of 2018 [2021] TZCA 490 (17 September 2021)on page 13]. I dismiss the 4^ ground for lack of merit. I do not find merit in the appellant's complaint in the fifth ground of appeal that he was denied his right to be heard. The records reaffirms that the appellant was given the right to present his evidence and adduced his testimony as reflected on page 34 to 36 of the proceedings. On page 36, 16 upon conclusion of his testimony, the appellant informed the trial court that he did not have any witness. He prayed to close his case. Based on the observations, the 6^ ground is unmerited and thus dismissed. The ground in the supplementary record is a complaint that PW2's testimony was taken in contravention of section 127(2) of the Evidence Act, Cap. 6 R.E. 2022 hereinafter, the "Evidence Act". My reading of first paragraph of page 11 of the typed proceedings reveal that the trial court recorded that PW2 promised to speak the truth. However, there was no record of the questions asked by the trial court in determining PW2's understanding of the nature of the oath or a promise to speak the truth and not

lies. The record does not indicate the answers made by PW2 of his promise to speak the truth and not lies. Indeed, there was contravention of section 127(2) of the Evidence Act for failure by the trial court to record the questions asked by the trial court and response by PWl culminating to his promise to speak the truth. However,the above was the previous position of the law as held by the Court of Appeal in the case of John Makongoro James v. R., Criminal Appeal No. 498 of 2020. The current position as provided for under section 127(6) 17 ^ of the Evidence Act Is that noncompliance of section 127(2) of the Evidence Act is not fatal if the trial court is satisfied that the child of tender age is credible, his testimony is reliable and his testimony is nothing but the truth whether corroborated or not. In the case of Felick Kilipasi (supra) the Court of Appeal held that irrespective of the mistaken conduct of voire dire test, section 127(6) of the Evidence Act can salvage the situation if it is established that the evidence of the victim was credible and true. On page 4 of the decision of the trial court, the trial magistrate cited the decision in the case of Elias Kitema v. Republic (2008) TLR 41 and held that even if the evidence of PW2 was not corroborated, she believed that PW2 was telling nothing but the truth. I agree with the trial court that the testimony of PW2 was

nothing but the truth. PW2 testified the number of times, places, time, and manner in which he was sodomized by the appellant. PW2 was able to identify the appellant as the person he knew before the incident and was consistent and unshaken throughout his testimony even when he was cross examined by the appellant. I find PW2 was a credible witness and his evidence was reliable and credible as the same. His evidence was corroborated by PW3, the 18 medical doctor and Exhibit PE2 that the victim was found with bruises, his anus muscles were loose and that he was penetrated from outside by a blunt object. That said, although the voire test was improperly conducted and in contravention of section 127(2)of the Evidence Act, I safely hold that PW2's was credible witness and his evidence was reliable to sustain conviction. I hold further that the evidence of PW2 was corroborated by the evidence of PW3 and Exhibit PE2 which was conducted on the same date of incident, and which reveal that PW2 was penetrated from outside by a blunt object. I dismiss the first ground in the appellant's supplementary petition for being unmerited. Based on my observations in the 1^ ground above that PW2 was a credible witness and his evidence was reliable and would warrant conviction even without corroboration, I do not find merit in the 2"^ ground of appeal. I have not found any incredibility,

improbability, untruthfulness or unreliability in the testimony of PW2.1 find it was proper for the trial magistrate to ground conviction based on the testimony of the PW2. I dismiss the 2"*^ ground for lack of merit. 19 I also do not find merit in the third ground of appeal. While I agree that for the purpose of ensuring a fair trial, it was Important for the trial court to warn the accused on the danger and the implication of not objecting to the evidence tendered in evidence, which in this matter, is Exhibit PEl and PE2, the law does not impose such a duty on the trial court. Being a matter of practice and not of law, the appellant's conviction cannot be rendered illegal merely on such omission. Even by assuming that it was a legal requirement that the appellant be warned of the failure to object to admission of the said exhibits and thus warranting expunction of the same, the evidence of PWl and PW2 sufficiently established the age of the victim even in the absence of Exhibit PEl, the victim's birth certificate. Further, the fact that the victim was penetrated was not only established by the victim but also PW3, whose evidence could in my view, remain unshaken even in the absence of Exhibit PE2, the PF3. Apparently, the tendering of evidence is a normal procedure in the course of substantiating one's case. The admission of an exhibit is only accepted upon being cleared for

admission. In my view, the trial court would have committed a fatal flaw had it been that it did not exercise its duty to assess the admisslbility of the exhibits upon a no objection from the appellant[See 20 ^ the case of Halfan Rajabu Mohamed v. Republic, Criminal Appeal No. 281 of 2020 [2023] TZCA 178(6 April 2023)]. It is clear on page 9 and 20 of the proceedings, the appellant did not object to admission of Exhibit PEl and PE2, respectively. The appellant was given an opportunity to cross examine PWl and PW3 but chose not to cross examine PWl. I do not find any prejudice occasioned to the appellant by the trial court's admission of Exhibits PEl and PE2 as the witnesses were competent to produce the same in court, and the exhibits complied with the tests of relevancy, authenticity and materiality. I dismiss the third ground for lack of basis. The fourth complaint is on the failure by the prosecution to present Emmanuel and Andrew who were material witness to prove veracity of PW2. My reading of the record of the trial court reveal that Emmanuel and Andrew were PW2's fellow students who went with PW2 to take water. PW2 testified that while Emmanuel and Andrew left, he remained there and was taken by the appellant to an unfinished house where the latter sodomized him six times. PW2 informed the trial court that Emmanuel saw the victim running 21 immediately after the incident

and took him to the school teachers to report the incident. From the above flow of the evidence of PW2,1 do not find that Emmanuel and Andrew were material witnesses in the criminal case. Neither Emmanuel nor Andrew saw PW2 being sodomized by the appellant. Their testimony as colleagues of PW2,that they went together to take water and that Emmanuel took PW2 to their schoolteachers, would not prove the offence of Unnatural Offence the appellant was charged with. It has been said often by the Apex Court of the land that the material witness is the one whose evidence is crucial to the extent that in absence of such evidence, the prosecution case might be rendered unproven. In the case of Wachawaseme John v- Republic,Criminal Appeal No. 468 of 2022 [2024] TZCA 340(8 May 2024) the Court held: "In law, generally a material witness is a witness whose evidence is relevant and consequential to the substantive legal proceeding. In the case ofthe Director ofPublic Prosecutions v. Sharifs/o Mohamed@AthumaniandSix Others, CriminalAppeal No. 74 of2016(unreported), we defined a material witness as follows: 22 "...a material witness Is a person who has Information or knowledge of the subject matter which Is significant enough to affect the outcome of a trial. (See the Free dictionary or legal dictionary)." In view of the testimony of PW2 and corroborated by the testimony of PW3 and Exhibit

PE2,1 find that the absence of the testimonies of Emmanuel and Andrew did not impact the prosecution's evidence through PW2 that he was sodomized by the appellant. Be it as it may, it has been an established position of the law that the best evidence in sexual offences comes from the victim. [See the decision of the Court of Appeal in Selemani Makumba v. R (2006)TLR 379]. My holding in respect of the first issue and what I have endeavoured to establish herein above,justifies me to dismiss the ground of appeal. The fifth ground attacks the decision of the trial court for its failure to disregard the appellant's defence. Indeed, in its judgement, the trial court did not consider the defence evidence. Apart from reproducing the testimony of DWl,the trial court did not consider the same in arriving at its finding the appellant guilty of the offence charged. 23 I understand that in criminal cases the onus of proof lies on the prosecution to establish beyond reasonable doubt that it is the accused person who committed the charged offence. In grounding conviction, courts are only concerned on the strength of the prosecution case regardless of the weakness of the defence case. The above notwithstanding, the trial court had a duty to evaluate evidence of both sides. By failing to evaluate the testimony adduced by the defence witnesses, it is without question that the trial court

departed from its statutory duty. Nevertheless, sitting as the first appellate forum, this Court is mandated to re-evaluate the evidence on record and come up with its findings. I shall step into the shoes of the trial court and evaluate the evidence of DWl, the appellant.[See the case of Gaudence Sangu v. Republic, Criminal Appeal No. 88 of 2020 [2022] TZCA 784(7 December 2022) on page 7 through to 8]. The testimony of DWl is based on the defence of alibi that he was not at the crime scene on the date of incident. Although DWl did not comply with section 194(4) and (5) of the Criminal Procedure Act Cap. 20 R.E. 2022 by issuing a notice or furnish the particulars of alibi, respectively, his testimony did not cast doubt on the prosecution case. DWl testified that though he 24 knew the victim before the Incident by seeing him on his way to school and with his father (PWl) when going to his work place. He denied to have committed the offence. He alleged he was arrested with Frank but Frank got bail; he had a girlfriend; he was a DJ; he was not examined by PW3; and that PW3 used his eyes to examine the victim. Assessing the appellant's defence and that of the prosecution, I find no doubt casted by the defence evidence to the prosecution case. I have held above that the victim's testimony was reliable and credible. DWl's testimony that he knew the victim before the incidence added

weight to the evidence of the victim that the appellant and the victim knew each other before the incident. It means that there is no doubt in PW2's naming the appellant as the person who sodomized him. The fact that PW3 used his eyes in examining PW2 does not impair PW3's findings recorded in Exhibit PE2. Again, there is no requirement of examination by a medical doctor of the perpetrator of sexual offence to prove or disprove sexual offences. It follows that though the trial magistrate defaulted to consider the testimony of DWl,the testimony of DWl did not create any doubt to the prosecution's case. The prosecution managed to establish the offence against the appellant beyond reasonable doubt 25 In view of my finding that the prosecution managed to prove the offence of Unnatural Offence against the appellant, I dismiss the present appeal for lack of merit. Consequently, I uphold the conviction of the trial court meted against the appellant and the sentence imposed thereon. It is so ordered. Right of appeal to the Court of Appeal fully explained. DATED at MOROGORO this ZS*" day of November 2024. H. A. KINYAl /

JUDGE i 28/11/2024 26