MGONJA JUDGEMENT

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: MWANDAMBO. J.A., KIHWELO, 3.A. And MGEYEKWA. 3.A.1 CRIMINAL APPEAL NO. 632 OF 2022 MGONJA CHAMBIHA @ R O C K ..................................................................APPELLANT VERSUS THE REPUBLIC................................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Mweneirmazi. J.^ dated the 12th day of October, 2022 in Criminal Appeal No. 11 of 2022 JUDGMENT OF THE COURT 24th & 26th March, 2025 KIHWELO. 3.A.: On 9th September, 2021 the appellant, Mgonja Chambiha @ Rock before the District Court of Same at Same (the trial court), was found guilty of unnatural offence contrary to section 154 (1) (a) of the Penal Code, Cap. 16. He was then sentenced to thirty years imprisonment. Believing that justice was not served by the trial court, he appealed to the High Court of Tanzania at Moshi in Criminal Appeal No. 11 of 2022 (the first appellate court). His appeal was dismissed in its entirety, hence this second appeal. According to the particulars of the offence, the appellant on 26th October, 2020 at about night time at Jitengeni Kihurio locale within Same District in Kilimanjaro Region, had carnal knowledge of his son against the order of nature. For purposes of concealing his identity we will refer to the son as the victim. The appellant maintained his innocence when the charge was put to him. According to the evidence which was led by the prosecution and believed by the two courts below; on the fateful day at or around 00:00 midnight, Ally Zakaria Mmbaga (PW2) had just closed his restaurant business and was heading to the farm to look after his crops when he heard groaning sounds coming from the appellant's room, and anxiously peeped through the window and with the aid of a torchlight he saw the appellant forcefully having carnal knowledge of the victim against the order of nature. Shockingly, he immediately relayed the disturbing news to the hamlet leader one Hamisi Ally Boha (PW3) who instructed PW2 to alert people in the neighbourhood so that the appellant could be apprehended. PW2 then woke up a handful of neighbours who in turn raised an alarm and a crowd gathered at the crime scene. They forced themselves inside the appellant's room where they came across the victim naked and was covered in feces and mucus around his anus. Upon arrival at the scene, PW3 informed the police from Kihurio Police Post concerning the incident and urged them to come and rescue the appellant from the enraged crowd. Later on, upon the directions of the police and advice of PW3, the victim was taken by PW2 to the police station where he was issued with a request for medical examination (PF3). After that, PW2 took the victim to Ndungu Health Center where the victim was medically examined by the Medical Doctor one Dr. Tatizo Jimmy who thereafter, filled the PF3 documenting the medical examination findings. The PF3 was later on tendered in court by police No. WP 11213 Detective Constable Neema (PW4) and admitted in evidence as Exhibit PI. According to the findings of the medical examination report there was penetration of a blunt object in the victim's anus. Furthermore, the victim was also found to have sperms around his anus. There was some further prosecution evidence from a police officer No. H. 91 Detective Constable Hamidu (PW5) who on the fateful day recorded the cautioned statement of the appellant which was later admitted in evidence as Exhibit P2. According to PW5 the appellant confessed to have sodomized the victim once and that was on the fateful day when he was also apprehended. Later on, the appellant was formally arraigned in court on the 31st March, 2021 and, that concludes the prosecution version which was unfolded during trial. In reply, the appellant reiterated his complete disassociation from the prosecution accusation and stoutly defended his innocence. In his sworn testimony, he testified that he was beaten by the villagers and later was brutally tortured by the police to secure confession. All in all, his defence was that the entire case was fabricated against him. On the whole of the evidence, the trial court found as truthful the evidence of the prosecution's witnesses. The appellant's denial was rejected. In the upshot, the appellant was found guilty, convicted and accordingly sentenced as hinted before. In protesting his innocence, the appellant lodged the appeal before the first appellate court as narrated above. The High Court expunged Exhibit PI for failure by the trial Magistrate to comply with section 240 (3) of the Criminal Procedure Act, Cap. 20 (the CPA). The High Court further expunged Exhibit P2 which was recorded in contravention of section 50 (1) (a) of the CPA. Then, the High Court on 12th October, 2022 dismissed the appeal. Still resentful, the appellant seeks to overturn the decision of the first appellate court and has amassed four (4) grounds which can be crystalized as hereunder. One, the first appellate court erred to uphold conviction and sentence while the prosecution case based on weak evidence of recognition by PW2. Two, the first appellate court erred to uphold conviction and sentence while the victim did not testify. Three, the first appellate court erred to uphold conviction and sentence which was based upon weak prosecution case and; four, the first appellate court erred to uphold conviction and sentence while the prosecution did not prove the charge. Eventually, the appellant appeared before us in person, and had no legal representation, while on the adversary side, the respondent Republic was represented by Mses. Rose Sulle and Agatha Pima, learned Senior State Attorneys assisted by Ms. Julieth Komba and Mr. Henry Daudi, learned State Attorneys. We invited the appellant to clarify his grounds of grievance but owing to his being a lay person not conversant with the law, essentially, he adopted the grounds of appeal, and urged us to consider them in determining the appeal. He also opted to let the respondent Republic reply to his grounds of appeal, but retained the right to rejoin if need would arise. For her part, Ms. Sulle, learned Senior State Attorney who argued the appeal for the respondent Republic, predicated her submission by opposing the appeal and thereby supporting the conviction and sentence on account that the charge of unnatural offence was proved. In response to the first ground of appeal whose complaint was on reliance on weak evidence of recognition by PW2, she contended that, PW2 recognized the appellant when he peeped through the appellant's window having heard strange sounds coming from the appellant's room and with the aid of a torchlight he was able to see the appellant ravishing the victim. The learned Senior State Attorney further argued that, PW2 knew very well the appellant who was not a stranger to him as he was residing at that area for quite sometime. In her further submission, the learned Senior State Attorney contended that, the appellant was properly identified on the night of the incident and the evidence of PW2 was supported by the evidence of PW3 the hamlet leader to whom the incident was reported by PW2. Arguing further, she submitted that, PW3 also knew the appellant as a security guard living within that area under his leadership. She rounded off by arguing that, the appellant did not cross examine on the issue of recognition when witnesses came to testify. Moreover, during cross examination, the appellant admitted that he was living with the victim in the same roof. She therefore, urged us to dismiss this ground. In the light of the foregoing submissions, the real sting of the matter is whether PW2 recognized the appellant on the fateful day. Our first concern in this ground is whether the case before us is one of recognition or identification. Our concern hinges on our evaluation of the evidence on record which clearly indicates that, the appellant and PW2 knew each other, since PW2 and the appellant were living at the same locale and PW2 knew the appellant for the past two years. What is more, the appellant was well known to PW2 as a person who was living at Mama Nagea, working as a watchman and had a son who was mentally and physically challenged. We are settled in our mind that, from the totality of the evidence on record, this is a clear case of recognition rather than identification. It is irrefutable position of the law that, where the appellant was recognized by the witness or witnesses who knew him well before the incident, that is a clear case of recognition than identification, and recognition is more satisfactory, more reassuring, and more reliable than identification of a stranger. We held similar position in the case of Lucas Daudi Wage v. Republic (Criminal Appeal No. 555 of 2021) [2024] TZCA 398 (5 June 2024; TANZLII) in which we referred to our earlier decision in Nicholaus James Urio v. Republic (Criminal Appeal No. 244 of 2010) [2012] TZCA 101 (7 September 2012; TANZLII). In the latter case, we quoted with approval the decision of the Court of Appeal of Kenya in Kenga Chea Thoya v. Republic, Criminal Appeal No. 375 of 2006 (unreported). We are of the firm view that, the case before us presents similar circumstances. That being the case, we find no grain of merit in this complaint, and on the contrary, we find considerable merit in the submission by the learned Senior State Attorney that, the appellant was recognized by PW2 on the fateful day. Fortunately, the appellant also placed himself at the crime scene during his defence testimony when he testified at page 24 of the record of appeal that he was with the victim in the house on the material date. We are not losing sight that the accused is convicted on the strength of the prosecution case and not the accused's weaknes. We, on our part, think the first appellate court, in respect of the first ground, correctly upheld conviction and sentence on the basis that PW2 recognized the appellant on the fateful day. Therefore, this ground has no merit. We will next deliberate on the second ground of appeal whose criticism is essentially on the failure by the prosecution to call the victim who was material witness in order to testify, which in the view of the appellant it dented the prosecution case. Ms. Sulle had an opposing view on this, drawing our attention to page 7 of the record of appeal, she contended that the trial Magistrate having applied the provisions of section 127 (1) of the Evidence Act, Cap. 6, formed an opinion that the victim was incapable of understanding questions put forward to him or giving rational answers by reason of being dumb and mentally impaired. Furthermore, the learned Senior State Attorney argued that failure to call the victim did not dent the prosecution case. Reliance was placed on the case of Christopher Marwa Mturu v. Republic [2022] TZCA 652 (17 October 2022) TanzLII, for the proposition that, there is no legal requirement for the prosecution to call a specific number of witnesses. She took the view that, the appellant was caught red-handed at the crime scene by PW2 and other people who gathered while ravishing the victim and PW2 was shown by the Doctor at the hospital bruises that the victim had in his anus. We have anxiously examined the record of appeal and dispassionately considered the competing arguments between the parties and the gravamen in this ground seems to lie on the issue whether failure to call the victim dented the prosecution case. We wish to reaffirm the settled position of law that, in terms of section 143 of the Evidence Act, there is no particular number of witnesses required to prove the case. We hasten to remark that there is unbroken chain of authorities to the effect that, it is not the number of witnesses a party calls which is relevant, but the credibility of evidence of witnesses called to testify that matters. See, for instance, Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Hassan Juma Kenenyera v. Republic [1992] T.L.R. 100. It is also settled position of the law that, where a party fails to summon a material witness to fill the gap or explain an important point, the court is entitled to draw an adverse inference. See, for instance, Aziz Abdallah v. Republic [1991] T.L.R. 71. Like the learned first appellate Judge, we can see no conclusion other than the fact that failure to call the victim did not dent the prosecution case. It bears reaffirming that, this is not the first time that a court arrived a conviction without the testimony of the victim of the crime. This Court has stated with sufficient lucidity in numerous occasions that conviction can be sustained independent of the evidence of the victim and there is a litany of cases where there was no evidence of the victim and yet the court arrived at a conviction independent of that evidence. See, for instance, Khamis Samwel v. Republic, Criminal Appeal No.320 of 2010 and Harrison Mwakibinga v. Republic, Criminal Appeal No. 196 of 2009 (both unreported). We equally, find that the second ground has no merit. We will finally deliberate on the complaint in ground three and four whose common thread is the criticism that the prosecution did not prove the case to the hilt. In our view, this poses no difficult. Ms. Sulle contended that, the appellant did not indicate in particular terms in what he termed the weaknesses in the prosecution case which in his opinion made the prosecution case to crumble. In further arguing the appeal, she submitted that the prosecution case was proved through the testimony of PW2, the eye witness who caught the appellant red-handed ravishing the victim, his own son. In her view, PW2 was found to be a credible and reliable witness by the two courts below and his evidence was corroborated by that of PW3. Elaborating further, the learned Senior State Attorney referred us to pages 35 and 79 of the record of appeal in which the two courts below found the evidence for the prosecution was sufficient to convict the appellant. In all, she urged us to disallow the appeal. We wish to predicate our deliberation of these two grounds by restating that, we, on a second appeal, can only vary the concurrent findings of the courts below if they completely misapprehended the substance, nature and quality of the evidence or, applied some wrong principle of the law. There is, in this regard, a considerable body of case law and we need not cite one. The question we are enjoined to answer at this juncture is whether or not the appeal is meritorious. Put differently, can we certainly say that the prosecution case was proved to the standard required by law? A thread runs through our law that, it is a duty of the prosecution to prove the case and the standard of proof is beyond reasonable doubt. This is a universal standard in criminal trials and the duty never shifts to the accused. Clearly, in the instant appeal the sole prosecution star witness was PW2. We must admit that the issue of credibility and reliability of PW2, has caused us considerable anxiety, and the reason is not far-fetched. PW2 is the sole prosecution witness who testified to have witnessed the appellant inserting his manhood into the victims' anus. However, a careful scrutiny of the evidence on record in this case, unlike the first appellate court, we are unable to assert, as the Judge did, that there were other eye witnesses who witnessed the appellant inserting his manhood into the victim's anus. For completeness of record we hold that PW2's evidence that he ably saw the appellant inserting his manhood into the victim's anus while peeping from the window at midnight and with the aid of a torchlight is beyond imagination. PW2 in his testimony recalled to have been called by the Doctor at the hospital and showed him the inside part of the victim's anus where he was able to observe bruises. We equally find this piece of evidence unbelievable. Under ordinary course of events it is unusual for a medic to call someone and show him/her bruises inside the victim's anus unless that child is of a tender age or infant and more so in this case PW2 was a stranger to the victim not being a parent or guardian. The prosecution evidence is further dented by the fact that there was neither testimony of the victim nor medical doctor and worse still, the PF3 was expunged by the first appellate court. Therefore, what remains on record is a mere suspicion. It is fairly settled that suspicion, no matter how strong, cannot be a substitute for proof, and a conviction cannot be based on suspicion alone, as the prosecution must prove guilt beyond a reasonable doubt. We find that the prosecution has utterly failed to do so and therefore, the two courts below completely misapprehended the evidence thus, it was unsafe for the first appellate court to have upheld the conviction of the appellant on the basis of the lone evidence of PW2. That said, we find the third and fourth grounds of appeal to have substance. We uphold both of them. In the result, the appeal is allowed. The impugned conviction and sentence are quashed and set aside. The appellant is to be released forthwith, if not held lawfully for another cause. DATED at MOSHI this 25th day of March, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A.Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 26th day of March, 2025 in the presence of the Appellant in person and Mr. Innocent Ng'assi, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. v £ Ag.Dl COURT OF APPEAL