CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 8626 OF 2024 (Arising from the decision of the District Court of Ruangwa at Ruangwa in Criminal Case No. 128 of2020) MUSSA JUMA BAKARI @MMASAI............. ......APPELLANT VERSUS THE REPUBLIC ............... RESPONDENT JUDGMENT 16(i: July & 15,J'Augusl 2024 MPAZE, J,; In the District Court of Ruangwa at Ruangwa Mussa Juma Bakari @Mmasai, the appellant was charged with the offence of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code [Cap 16 R.E 2019] (now Revised Edition, 2022) (the Penal Code). It was alleged in the particulars of the offence that, on the 18th of September, 2020 at Namichiga Village within Ruangwa District in Lindi Region, the appellant did have carnal knowledge against the order of nature of a boy aged 2 years old. For this judgment, I shall use 'the victim' or 'PW5' interchangeably to conceal the victim's identity. i The appellant denied the charge, leading to the case going to a full trial. In a bid to prove its case, the prosecution paraded a total of five witnesses namely; Abdallah Bakari Abdallah (PW1), Dr. Asha Matuta Samwel (PW2), D.8446 SGT Mathew (PW3), the victim's mother Fatuma Selemani Tipitipi (PW4), and the victim (PW5). The documentary evidence tendered by the prosecution included a PF3 and a Caution Statement, which were admitted and marked as Exhibit Pl and Exhibit P2 respectively. In his defence, the appellant was the sole witness. Briefly, the evidence of the prosecution can be summarized as follows; PW4 (the mother of the victim) testified that, on the 18th of September, 2020 at around 20:00 hours, she went to a traditional ceremony known as 'ngoma ya masftetani' and left the appellant (the victim's stepfather) at home with the victim. After about an hour, while she was still at the ceremony, the appellant followed her and informed her that the victim was sick and 'anaharisha damu''($^Es\n$ blood in his stool). Upon receiving this information, PW4 immediately questioned the appellant, asking what had happened to the victim, as she had left him in 2 good health. Despite her concerns, the appellant insisted that they returned home immediately and urged her not to inform anyone about the incident. As they were making their way back, the appellant continued to probe PW4, asking her if in the afternoon had left the child in the care of another adult man, but she firmly denied doing so. PW4 further testified that when she arrived home, she saw blood on the floor, which appeared to have been diluted with water. The victim was lying on his stomach on the bed. She took the victim, who was unable to stand, and examined his anus, where she observed that it was torn and bleeding. Therefore, she decided to take the victim with her to the ceremony, crying as she went. At the ceremony, others saw the victim's condition. PW1 was among those who witnessed the victim's state and confirmed that he was bleeding from his anus. PW1 advised PW4 to take the victim to the Namichiga Health Centre. At the health centre, PW4 was instructed to first obtain a PF3 from the police station and then take the victim to Mbekenyera Hospital for treatment. 3 They returned heme and brought the appellant with them to the Mbekenyera Police Post, where the appellant was detained and a PF3 was issued. The victim was then taken to Mbekenyera Health Centre, where he was medically examined by PW2. PW2 found that the victim's anus had bruises and was bleeding, with waste leaking uncontrollably, indicating that he had been penetrated by a blunt object. PW2 completed the PF3, which was later tendered and admitted as Exhibit Pl. Upon interrogation by PW3, the appellant confessed to having carnally known the victim against the order of nature. The caution statement was recorded in the presence of the appellant's aunt, Esha, who did not appear in court to testify. After an inquiry was made, and the main case resumed the statement was tendered and admitted as Exhibit P2. PW5, the victim, testified that the appellant sodomized him, recounting the incident by pointing at the appellant and saying, aliniingiza dudu lake la mkojo niliumid' (he inserted his penis into me, I felt pain). He insisted that the appellant was the one who had carnal knowledge of him when they were alone in the house. PW5 further stated that when the appellant penetrated his anus, blood came out, and his mother (PW4) took him to the hospital. 4 In. his defence, the appellant admitted that PW4 had left the victim in his care, but he denied committing the offence, insisting that the testimonies of PW1 and PW4 were untrue. He stated that he had quarrels with PW4 before the incident, but they had reconciled. The appellant claimed that after PW4 left, he also left the house with a friend, leaving the victim asleep. When he returned, he found the door open and the victim crying on the bed with diarrhoea. He then went to call PW4, who took the victim, while he stayed home and went to sleep. Upon the conclusion of the full trial, the trial magistrate was satisfied that the prosecution had proven the case against the appellant beyond a reasonable doubt. Consequently, the appellant was convicted and sentenced to life imprisonment. The appellant was dissatisfied With both the conviction and the sentence, leading to the present appeal. In his petition of appeal, dated 14th March 2024, he raised the following nine (9) grounds of appeal; 1. That the trial magistrate erred in law and fact in convicting and sentencing the appellant as the appellant pleaded not guilty when the charges were read over to him. 5 2. That the trial magistrate erred in law and fact in convicting and sentencing the appellant based on the evidence of PW5 in a case whereby the mandatory of section 127 (2) of the Tanzania Evidence Act [Cap 6 R.E. 2022] was not complied with as the trial magistrate failed to test PW5 (victim who was said to be a child of tender age) and prove that he knows the meaning of telling the truth before adducing his evidence as nowhere in the whole court proceedings that shows that the said PW5 (victim) tested to prove that he knows the meaning of telling the truth and not lies and nowhere that shows that he said that he knows the meaning of telling the truth and he will tell the truth and not tel! lies as the mandatory required by the law. 3. That the trial magistrate erred in law and fact in convicting and Sentencing the appellant relying on his confession statement which was said to have been taken in the presence of the appellant's aunt who was not summoned to prove that before the trial court and the prosecution failed to call one Ally Bakari Katoto (VEO) who was said to write appellant's Extra Judicial Statement to prove that it was the same as it was stated by the prosecution. 6 4. That the trial magistrate erred in law and fact in convicting and sentencing the appellant by failing to appraise objectively the credibility of PW5 (victim) a child of tender age of five years when testifying before the trial court without considering that the said child was said to be of the age of two (2) yrs when the said act was said to occur something that creates a lot of doubts as if the said child had enough memory to remember what happened and this proves that there was coaching which was done before he gives his evidence. 5. That the trial magistrate erred in law and fact in convicting and sentencing the appellant in a case where the appellant was denied his rights of bail as there was no document which was tendered by the prosecution to prove that there was an order from the High Court at Mtwara that was directing that he should be denied the right of bail. 6. That the trial magistrate erred in iaw and fact in pre-determining the appellant’s conviction during the ruling on whether or not the appellants had a case to answer after the prosecution case was 7 marked dosed the omission which resulted in a serious error amounting to a miscarriage ofjustice and constituted a mistrial. 7. That the trial magistrate was misdirected in failing to properly analyse the evidence given by the appellant and the respondent and shifted the burden ofproof to the appellant. 8. That the trial magistrate erred in law and fact in convicting and sentencing the appellant when the same erroneously failed to subject the defence evidence to a critical, objective and conjunctive evaluation, and analysis and sufficiently consider the same before arriving at a conclusion. 9. That the trial magistrate erred in law and fact in convicting and sentencing the appellant in a case where the prosecution has miserably failed to prove its charge against the appellants beyond reasonable doubt as required by section 3(2)(a) of the Tanzania Evidence Act Cap 6 R.E. 2019. Later on, 12th July, 2024 the appellant filed additional grounds: of appeal, consisting of the following two (2) grounds; 8 1. That the trial magistrate failed to consider the defence evidence when composing his judgment since the trial magistrate found the appellant guilty through the prosecution witnesses and their exhibits while section 235 (1) of Criminal Procedure Act Cap 20 R.E.2022 was not complied with. 2. That, the trial Magistrate erred in law and fact by convicting and sentencing the appellant while section 231 (1) of Criminal Procedure Act Cap 20 R.E 2022 was not observed as required by law. At the hearing of the appeal, the appellant appeared in person unrepresented whereas Ms. Florence Mbamba the learned State Attorney represented the respondent/ Republic. When invited to submit in support of his grounds of appeal, the appellant asked the court to adopt his grounds of appeal as presented to form part of his submission. He then allowed the State Attorney to submit first, reserving his right to rejoin if necessary. On her party Ms. Florence strongly opposed the appeal. She argued grounds 1, 7,. and 9 of the initial appeal jointly, as they all centred on a 9 single complaint; that the prosecution failed to prove its case beyond a reasonable doubt. To counter this argument, Ms. Florence contended that the prosecution had successfully met its burden by proving two key elements; first, that penetration occurred, and second, that the penetration was unnatural. She substantiated her position by citing the case of Babu Idd v. R (Criminal Appeal No. 332 of 2015) (2016) TZCA 582 (23 February 2016), where the Court emphasized on pages 5 and 6 that penetration is a fundamental element in establishing the offences of rape and unnatural offences. Ms. Florence argued that the evidence of PW5, the victim, as recorded on pages 48 and 49 of the proceedings, clearly indicated that the appellant committed the unnatural offence against him. The victim stated, 'Mstakiwa aliniingiza dudu lake la mkojo niliumia' meaning the appellant inserted his penis, causing him pain, indicating that anal penetration had occurred. Ms. Florence further argued that the victim's testimony was corroborated by the evidence of PW2 and PW4. She asserted that PW2, the medical doctor, testified that her examination of the victim's anus revealed id that PW5 had been penetrated by a blunt object. She confirmed: this finding after observing bruises, uncontrolled bleeding, and faecal matter discharge. PW4, the victim’s mother, testified that she had left the victim in the appellant's care. Shortly thereafter, the appellant came to inform her that the victim was unwell. Upon returning home, PW4 found the victim bleeding from the anus. Ms. Florence contended that the combined evidence from PW2, PW4, and PW5 established that the victim had been anally penetrated. Regarding who committed the offence, Ms. Florence argued that the evidence provided by the victim's mother, coupled with the appellant’s defence, clearly indicates that the appellant was the one who committed the offence. She noted that the appellant admitted he was left alone with the victim. Although the appellant claimed that he had left the house with a friend and returned to find the child had been sodomized, he failed to bring this alleged friend as a witness to support his defence, Ms. Florence further pointed out that PW4 testified the victim was only two years old at the time of the incident. She argued that, even at that 11 age, a child could indicate, through signs or actions, who had perpetrated the act just as the victim did when he identified the appellant as the one who committed the offence.; In light of this evidence, Ms. Florence concluded that the prosecution had successfully proven the case beyond a reasonable doubt. In response to the second ground, which contends that the evidence of PW5 was taken contrary to section 127 of the Evidence Act, Ms. Florence refuted the allegation. She explained that section 127(2) of the Tanzania Evidence Act [Cap 6 R.E 2022] (the TEA) requires the testimony of a child of tender age to be given only after the child has promised to tell the truth. Ms. Florence directed the court's attention to page 45 of the typed proceedings, arguing that the trial court had recorded that the child understood the meaning of telling the truth, thereby fully complying with section 127. Furthermore, Ms. Florence referred the court to the case of Abdallah Kondo v. R (Criminal Appeal No. 322 of 2015) [2016] TZCA 189 (28 September 2016), where it was held that the trial court is in a better 12 position to assess the credibility and demeanour of a witness, as opposed to the appellate court. She argued that the trial court was satisfied that the victim understood the meaning of telling the truth, thereby deeming his testimony credible. Ms. Florence also highlighted that section 127 of the TEA was amended by Act No. 11 of 2023, adding subsection 7, which states that the failure to record the evidence of a child of tender age in accordance with section 127(2) does not render the child's evidence inadmissible. In addressing the credibility of PW5, Ms. Florence firmly rejected the appellant's allegation that PW5, being only two years old at the time of the incident, was incapable of accurately recalling the details necessary for his testimony. She referred to the case of Abdallah Kondo {supra), which underscores that the trial court is uniquely positioned to evaluate the credibility and demeanour of witnesses. Ms. Florence contended that the trial court found PW5 to be a credible witness and consequently placed trust in his testimony. Additionally, she highlighted that the testimonies of PW4 and PW2 served to corroborate PW5's account. 13 On the third ground, the appellant contends that the trial court erred in finding him guilty based on his caution statement, arguing that his aunt, who allegedly witnessed the recording of the caution statement, was not called as a witness. Ms. Florence opposed this ground, citing section 143 of the TEA, which does not mandate the prosecution to call a specific number of witnesses to prove the commission of an offence. She argued that, in cases like the one at hand, the best evidence comes from the victim, as accentuated in Abdallah Kondo's case. She added that page 16 of the typed proceedings indicates that after the appellant objected to the admission of the caution statement, the case proceeded to an inquiry. During this inquiry, the prosecution called two witnesses to establish that the statement was recorded voluntarily in the presence of the appellant's aunt. Ms. Florence asserted that the appellant did not cross-examine PW1 and PW2 during the inquiry to contest his aunt's presence at the time the caution statement was recorded. She pointed out that failure to cross­ 14 examine a witness on significant matters implies an admission of those facts. About the appellant’s claim that the Village Executive Officer (VEO) was not called as a witness, Ms. Florence disdained this complaint as baseless. She pointed out that, as noted on page 54 of the typed proceedings, the State Attorney informed the court that the decision not to call the VEO was based on the fact that the extra-judicial statement did not meet the criteria established by the Chief Justice's Guidelines, so they did not see the importance of calling him as a witness On the fifth ground, where the appellant claims that the trial court erred in finding him guilty by denying him his right to bail without any proof from the prosecution, Ms. Florence clarified that page 2 of the typed proceedings shows the trial court refused the appellant's bail based on a High Court order. She further noted that the appellant never challenged the High Court order. On the sixth ground, where the appellant claims that the trial court predetermined his conviction when giving the ruling on the case to answer, Ms. Florence argued that it is a legal requirement under section 231 of the 15 Criminal Procedure Act [Cap 20 R.E 2022] (the CPA), for the trial court to issue a ruling on whether there is a case to answer after the prosecution has closed its case. She supported her argument by citing the Abdallah Kondo case, emphasizing that the trial court's ruling was in compliance with the law and did not suggest any premature conclusion of the appellant's guilt. Addressing the eighth ground of appeal and the first additional ground, where the appellant contends that the trial court failed to consider his defence, Ms. Florence affirmed that the trial magistrate thoroughly considered the appellant's defence. She highlighted that this is evident from pages 6 to 12 of the judgment, where the trial court identified key issues, provided detailed answers, and carefully evaluated the appellant's defence. Lastly, the second additional ground is addressed, where the appellant contends that the trial court failed to comply with section 231 of the CPA. Ms. Florence referred the court to page 56 of the typed proceedings, which, consistent with the handwritten proceedings, noted that after the prosecution closed its case, the court determined that the accused had a case to answer. 16 Following this, the trial magistrate read the charge to the appellant, explained the nature of the charge, and informed him of his rights, including the option to give sworn or unsworn testimony, call witnesses, remain silent, or seek legal representation, the appellant opted to testify under oath and chose not to call any witnesses or tender exhibits in his defence. She insisted that section 231 was duly adhered to, citing the Abdallah Kondo case, referring the Julius Justine & 4 Others v. R Criminal Appeal .No. 155 of 2005 (unreported), to underscore the importance of considering the circumstances of each case when applying sections 230 and 231 of the CPA. Ms. Florence concluded that the appellant’s defence, as recorded on pages 60 and 61 of the typed proceedings, was consistent with the charge he faced, indicating that he fully understood the allegations against him. Ultimately, the State Attorney urged this court to find that the appeal lacks merit and to dismiss it. In rejoinder, the appellant insisted this court analyze and examine the evidence and if possible, to arrive at a different finding from that of the trial court. 17 Having considered the submissions from both parties, it is now time for this court to evaluate the merit of this appeal. I am mindful that the first appellate court must objectively re-evaluate the entire evidence and, if necessary, arrive at its own findings of fact, as the process is essentially in the form of rehearing. This legal position has been consistently reaffirmed in numerous decisions by the Court of Appeal, including in the case of Firmon Mlowe v. R (Criminal Appeal 504 of 2020) [2022] TZCA 694 (9 November 2022). In my determination of this appeal, I will address the grounds as they were submitted by the State Attorney save for the first ground of appeal which she argued collectively with the seventh and ninth grounds of appeal, will be argued separately. However, the grounds that raise procedural irregularities will be addressed first. Beginning with the second ground of appeal, the appellant contends that the evidence of PW5, a child of tender age, was recorded contrary to section 127(2) of the Evidence Act. He argues that the trial magistrate failed to assess and confirm that the child understood the meaning of telling the truth as opposed to lying. 18 In response to this ground, Ms. Florence argued that the trial magistrate's observation on page 45 of the typed proceedings, which indicated that the child understood the meaning of telling the truth, demonstrates compliance with section 127(2). She further emphasized that the trial court was in the best position to assess the credibility and demeanour of the victim. According to her, the trial magistrate was convinced that PW5's testimony was truthful. Additionally, Ms. Florence drew the court's attention to section 127(7), which was introduced after the amendment of the Evidence Act in the Legal Sector Laws (Miscellaneous Amendment) Act No. 11 of 2023. This provision according to her clarifies that the failure to record a child's evidence in strict accordance with section 127(2) does not render it inadmissible. Based on this amendment, she argued that PW5's testimony should be regarded as credible. In light of the arguments from both parties, I revisited the trial court records to examine what transpired when PW5 appeared to give his evidence. For ease of reference, the relevant part of the proceedings is as follows; 19 'PW5, the victim, 5 years old, Mwera, Muslim, living at Dar es Salaam now Court: The child seen to understand the nature of telling the truth and that section 127 of the Tanzania Evidence Act is C/W.' From the excerpt provided, it cannot be concluded that the trial magistrate fully complied: with the requirements of section 127(2) of the TEA. This is because the child's promise to tell the truth must be explicit and recorded in the proceedings. In the case of Joseohat Mqomba @ Ambrose v, R, (Criminal Appeal No. 446 of 2020) [2024] TZCA 229 (22 March 2024), it was stated that the promise from a child of fender age must be actual and has to be recorded. It is crucial to note that the introduction of subsection 7 of section 127 did not override the procedure already established under section 127(2) of the TEA. If the amendment intended to eliminate the requirements of section 127(2), the amendment would have explicitly stated so. The newly added subsection states; 20 'Notwithstanding any other iaw to the contrary, failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence of such child inadmissible' In the case of George Jonas Lesilwa vs. Republic (Criminal Appeal No. 374 of 2020) [2024] TZCA 269 (16 April 2024), the Court of Appeal elucidated the rationale behind the amended provision as follows; 'For the sake of completeness, we are constrained, before leaving this subject, to observe that, going by the above interpretation of the iaw, it must be dear that the evidence of a child of tender age should not be discarded on flimsy reasons without proof, on a balance, of probabilities, that there was something lacking that really affected the quality and credibility ofsuch evidence. In other words, an appellate court should look at the substance of the complaint raised by the appellant and see whether the alleged non-compliance with section 127(2) of the Evidence Act was of such a nature as to be said, in rational terms, to have produced a substantial defect upon such evidence. The above observation, no doubt, is the reason behind the recent introduction of section 21 127(7) of the Evidence Act as amended by the Legal Sector Laws (Miscellaneous Amendment) Act No. 11 of2023! Similarly, the Court of Appeal, in the case of Francis Eliud @Mnvamwezi v, R (Criminal Appeal No. 308 of 2022) [2024] TZA 665 (31 July 2024), referenced its stance in George Jonas Lesilwa {supra} when faced with a similar situation, as the case at hand stated; ' Whilst also mindful of the import of the recent introduction of section 127(7) of the Evidence Act brought about by the Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of2023, we find nothing in relation to the victim 's promise, to tell the truth, and not to tell lies that violated section 127(2) of the Evidence Act. As there was also nothing on the record that affected the reliability of such evidence, we proceed to answer the first condensed ground in the negative! My understanding from the authorities cited above is that if the requirements of section 127(2) are not adhered to when recording the testimony of a child of tender age, it does not automatically render the evidence inadmissible. Instead, the appellate court must assess the 22 evidence to determine whether the failure to follow the prescribed procedure compromises its reliability. If the credibility of the evidence remains intact, then the procedural lapse does not affect the admissibility of the testimony. However, if it is determined that the failure to adhere to the required procedure undermines the reliability of the evidence, then that evidence may be discarded. Thus, the crucial element introduced by the amendment, and what should be the primary focus, is the credibility and trustworthiness of the testimony given by the child of fender age. Given this legal perspective, at this stage, I will not discard PW5's evidence merely because the requirement of section 127(2) was not observed. Instead, I will proceed to examine the testimony with attention to whether there is any reason for this court to doubt the credibility of PW5’s testimony due to the absence of a promise to tell the truth and not lies. The credibility of PW5 has been challenged by the appellant in two ways; first, through the alleged failure to comply with section 127(2) of the TEA, as outlined in the second ground of appeal; and second, by 23 questioning the reliability of PW5's testimony regarding the incident as highlighted in the fourth ground of appeal. The appellant expressed doubt that PW5, who was two years old at the time of the incident and five years old when testifying, if could accurately recall events that occurred when he was just two years old. It is a trite law that every witness is entitled to credence and must be believed, and their testimony should be accepted unless there are compelling and justifiable reasons for discrediting them. This principle was affirmed in Goodluck Kvando v. Fl (2006) TLR 363. Reasons to disbelieve a witness may include instances where the witness has provided improbable or implausible testimony, or when their evidence has been significantly contradicted by other witnesses. This was stated in the case of Mathias Bundala v. R Criminal Appeal No. 62 of 2004 (unreported). I fully agree with the appellant that the incident occurred when PW5 was two years old and that when he appeared in court to testify on 25th September, 2023 he was five years old. However, the records indicate that PW5 at first time appeared at the trial court to testify when he was just 24 two years and six months old. The appellant was convicted and sentenced to life imprisonment, prompting an appeal to this court. The conviction and sentence of the trial court were nullified, and an order was issued for the case to start afresh. By that time, PW5 was already five years old. I have chosen to outline this sequence of events to explain why PW5 provided testimony at the age of five. This background is also crucial in assessing the credibility and reliability of his evidence. On how the credibility of the witness can be assessed was stated in the case of Shabani Daudi v, R (Criminal Appeal No 28 of 2001) (unreported) that; ' Credibility of the witness is a monopoly of the trial court but only so far as demeanour is concerned. The credibility of the witness can also be determined in two ways. One when assessing the coherence of the testimony of that witness and two when the testimony of that witness is considered in relation to the evidence of other witness including that of the accused person. In those two occasions, the credibility of a witness can be determined even 25 by a second appellate court when examining the findings of the first appellate court'. Applying the principle established in the cited authority to the case at hand, as the first appellate court, I revisited PW5's testimony and asked myself whether PW5’s account was credible. In his testimony PW5 testified that he was penetrated by the appellant/ this is shown on page 48 of the trial court proceedings as follows; i was raped (he shown the accused) by my father, my father (XY pointed his annus) entered his penis ( "aliniingiza dudu lake lamkojo niliumia") the victim show the accused by pointing his hand that the accused sodomized him. The one who sodomized me is my father we were at the house alone. My father names Juma Mmasai. After he entered into my annus the blood come out and my mother come and took me to the hospital were they give me siting (sindano) and I slept over the hospital. That is all.' Signed SRM 25/9/2023 26 There was indeed a significant passage of time between the time the incident occurred and the day PW5 gave his testimony. However, after carefully examining this evidence, despite the time lapse, I found no reason to doubt its trustworthiness. There was no evidence indicating that PW5's memory had been compromised. How PW5 delivered his testimony was straightforward, clear, and unambiguous, and it aligned with the accounts provided by other witnesses. PW5 was able to clearly describe how the appellant sodomized him and what transpired after the appellant completed the heinous act against him. After concluding his testimony, the appellant was allowed to cross- examine PW5, but he had no questions for this witness. It has been established in various cases that a failure to cross-examine a witness amounts to an acceptance of the truthfulness of that witness's account. In the case of Nverere Nyaque v. R Criminal Appeal No. 67 of 2010, the Court of Appeal remarked; 'A party who fails to cross-examine a witness on a certain matter is deemed to have accepted that and will be estopped from asking the trial court to disbelieve what the witness said! 27 Therefore, if the appellant believed that PW5's testimony was questionable or that he could not remember what happened to him when he was two years old, he had the opportunity to cross-examine him. Through those questions, he could have clarified whether PW5 was accurately recalling the events. The appellant's failure to do so now hinders him from doubting whether PW5 truly retained a memory of what occurred when he was two years old. In the case of Shabani Daudi {supra}, it has been indicated that credibility can also be assessed by examining the defence of the accused. In his testimony, the appellant stated that on the day of the incident, PW4, who is PW5's mother, left him with PW5, who then went to a ceremony. The appellant further claimed that while he was at home, a friend arrived and asked to take him somewhere, leaving PW5 asleep. Upon returning, he found the door open, with PW5 crying and having soiled himself. He decided to go to PW4 and inform him that PW5 had soiled himself. This piece of evidence aligns with PW5's statement that on that day, he was at home with the appellant. It also corroborates PWl's testimony, 28 who witnessed blood and faeces coming from PW5's anus. Additionally, PW2, the doctor who examined PW5, stated that after the examination, he discovered that PW5 had been penetrated against the order of nature, as there were bruises in his anus, blood, and faeces were being expelled uncontrollably. In addition to the aforementioned witnesses, PW4, who is PW5’s mother, testified that she left PW5 with the appellant to attend a ceremony. While she was there, the appellant approached her, stating that PW5 had soiled himself. Upon returning home, she found PW5 lying on the bed, unable to stand, with blood and faeces coming from his anus. Considering this piece of evidence, I do not find any reason to question PW5's credibility. His testimony was graphic, clear, unambiguous, and consistent with other accounts. Therefore, the failure to comply with section 127(2) did not, in my view, affect the reliability or Credibility of PW5's testimony. It was appropriate for the trial magistrate to consider him a reliable and credible witness. Consequently, the second and fourth grounds of appeal are dismissed for lack of merit. 29 As for the fifth ground of appeal, where the appellant contends that he was denied bail by the trial court, I find this argument unsubstantiated, The denial of bail was ordered by this court, not the trial court. If the appellant was dissatisfied with that decision, he should have appealed to the Court of Appeal at the time. Moreover, his conviction and sentence are unrelated to the bail denial. Therefore, this ground lacks merit. In the sixth ground of appeal, the appellant claims that the trial magistrate pre-determined his conviction when delivering the ruling on whether the appellant had a case to answer. Also, in the second supplementary ground of appeal, he argues that section 231(1) of the Criminal Procedure Act was not adhered to. In response, Ms. Florence denied any pre-determination of the appellant's conviction and maintained that there was no violation of section 231(1) of the CPA as it was fully complied with. It is important to note that it is a statutory requirement when the prosecution closes its case, the court must examine the evidence presented by the prosecution to determine whether it has established a case that requires the accused to answer. Therefore, the determination of whether 30 the accused has a case to answer does not imply that the accused has been pre-convicted. Upon examining page 55 of the typed proceedings, after the prosecution concluded its case, the trial magistrate ruled; V have passed through the evidence from the prosecution side and find that the accused has a case to answer'. Based on this excerpt, it cannot be said that the trial magistrate pre­ determined the appellant’s conviction, making this complaint baseless. Regarding the claim that section 231(1) of the CPA Was not complied with, I find this argument unconvincing. As Ms. Florence correctly pointed out, page 56 of the typed proceedings indicates that the trial magistrate adhered to the requirements of section 231(1) of the CPA. For clarity, let's examine what the section stipulates; 231.-(1) At the dose of the evidence in support of the charge, if it appears to the court that a case is made against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or in relation to any other offence of which, under the provisions of sections 300 to 31 309 of this Act, he is Hable to be convicted, the court shall again explain the substance of the charge to the accused person and inform him of his right- fa) to give evidence whether or not on oath or affirmation, on his own behalf; and (b) to call witness in his defence, and shall then ask the accused person or his advocate if it is intended to exercise any of the above rights and shall record the answer; and the court shall then call on the accused person to enter on his defence save where the accused person does not wish to exercise any of those rights'. The requirements of this section dictate that once the prosecution has closed its case and it is determined that the accused has a case to answer, it is the duty of the trial court to inform the accused of his right as stipulated in this section before he proceeds with his defence. Upon examining page 56 of the proceedings, it is clear that the trial magistrate adhered to this provision, ensuring that the accused was fully 32 informed of all his rights before: proceeding with his defence, as demonstrated in the following excerpt from the record; 'Court: The substance of the charge is explained to the accused person in the language he understands. The accused is informed of his rights as follows; One, he has right to give evidence on oath/affirmation or not on oath/affirmation, but if he opts to give evidence without oath/affirmation the cross-examination is conducted as normal. Two, he has right to call witnesses in his defence. Three, he has right to engage his advocate if any. Four, he has right to tender exhibit if any. Accused: I have understood my rights and the substance of the charge face me I will give evidence of affirmation I have no witnesses I have no advocate to represent me. I have no exhibit to tender. That is all.' Although the appellant replied he would not call any witnesses, he later during his defence informed the trial court that he intended to bring a witness. The trial court did not remind him of his earlier statement; 33 instead, it granted him the opportunity to bring his witness. The hearing was adjourned more than twice to allow the witness to appear, but the witness never did. Eventually, the appellant informed the court that his witness could no longer be located, as his relatives had informed him of the same. This is evident from pages 62 to 64 of the trial court proceedings. Given what is reflected in the record, I find no merit in the appellant's complaint, as the provision was fully complied with in its entirety. On the third ground of appeal, the appellant challenges the trial court's decision to find him guilty and convict him based on his confession statement, arguing that the trial court erred by not summoning his aunt, who was allegedly present during the recording of his caution statement. I find this complaint to be without merit. As Ms. Florence correctly submitted, and as reflected in the record, when PW3 sought to tender the appellant's caution statement as an exhibit, the appellant objected to its admissibility because it was obtained under duress. 34 In response to this objection, the court temporarily suspended the main proceedings and conducted an inquiry. Following the inquiry, it was determined that the appellant's caution statement was made voluntarily. During the inquiry, two witnesses testified and confirmed that the statement was recorded in the presence of the appellant's aunt. These witnesses were not cross-examined on this point, indicating that the appellant accepted their testimony that his statement was made in his aunt’s presence. Ms. Florence also highlighted that the law does not require a specific number of witnesses to prove a particular fact, a position clearly established under section 143 of the Evidence Act. The same position is well articulated, in the case of Harson Gerald v. R (Criminal Appeal No. 198 of 2021) [2024] TZCA432 (11 June 2024), where it was held that; 'That means in law, generally, there is no requisite number of witnesses necessary to prove a fact, because what the court is concerned with, is the credibility of the witness or witnesses called, and we have held so on many occasions. However, where 35 the entire case hinges on the evidence of a single witness, this Court has made reliance on such evidence more stringent by requiring a trial court to test the truthfulness of the evidence and double check it in a quest to satisfy itself that the evidence, is indeed, nothing but the truth/ I have thoroughly examined this complaint and find that the trial magistrate correctly based the conviction on the appellant's confession statement. The statement was recorded per the law, and the appellant was fully informed of his rights before signing it. When prayed to be admitted as an exhibit was objected to, an inquiry was conducted which ruled the statement was made voluntarily. Therefore, the fact that the appellant's aunt did not testify does not imply that the confession was involuntary. I should also point out that the appellant's conviction was not solely based on his confession statement, but also the evidence from other witnesses, as well as his defence, which was considered. As Ms. Florence rightly submitted, there is no specific number of witnesses required to prove a particular fact. Therefore, the absence of the appellant's aunt did not affect the prosecution’s case in any way. 36 The appellant also challenged the prosecution's decision not to call Ally Bakari Katoto, who was alleged to have recorded the Extra Judicial Statement. However, the record shows that this statement was never admitted as evidence. The prosecution explained that the Extra Judicial Statement did not comply with the Chief Justice Guidelines, meaning that even if the witness had appeared and testified, the Extra Judicial Statement would still lack evidentiary weight. Therefore, I find this ground baseless. On the seventh, eighth and first additional grounds of appeal, the appellant complained that the trial magistrate failed to consider his defence. Ms. Florence argued that the trial magistrate considered the appellant's defence citing pages 6 to 12 of the typed judgment where the trial court formulated issues and provided answers to those issues. It is worth noting that the Court of Appeal has repeatedly emphasized the necessity of not relying solely on the prosecution's evidence while disregarding the appellant's defence. In the case of George Jonas Lesilwa v. R (supra}. the Court held that; 'We are mindful of our earlier decisions in which we have held on several occasions that, an accused person’s defence has to be considered, as of necessity, even if, in the end result, the defence 37 would have been rejected and that, this principle is elementary but, nonetheless, fundamental to the extent that failure to take into account any defence put up by an accused person, will vitiate the ultimate conviction' Guided by the above decision, I carefully examined the pages referred to by the State Attorney and found that, when addressing the issues specifically on who committed the offence the defence of the appellant was considered, the trial magistrate analyzed the evidence from both sides but ultimately rejected the appellant's story. Therefore, it is not true that his defence was not considered, it was considered but it was rejected, as such I find this ground of appeal also lacks merit. On the first ground of appeal, the appellant argued that the trial court erred in convicting and sentencing him despite not pleading guilty. This complaint is unfounded since It's true the appellant did not plead guilty, which is why the case proceeded to a full trial. Therefore, no error was made by the trial court, and the conviction and sentence were based on the outcome of the trial, not a guilty plea. Consequently, this complaint is also without merit. 38 Finally, On the seventh and ninth grounds of appeal, the appellant contends that the prosecution's evidence was not proven beyond a reasonable doubt. However, Ms. Florence argues that the case against the appellant was established beyond a reasonable doubt. In criminal cases, it is the prosecution that has a burden to prove the case beyond a reasonable doubt. On the other hand, the accused's duty is to cast doubt on the prosecution case. See the case of Samwel Abraham Chuma v. R. (Criminal Appeal No. 531 of 2020) [2023] TZCA 61 (24 February 2023). In the present case, the appellant was charged with unnatural offence contrary to section 154(1) (a) and (2) of the Penal Code which states that; '154- (1) Any person who- (a) has carnal knowledge of any person against the order of nature; (b) has carnal knowledge of an animal; or (c) permits a male person to have carnal knowledge of him or her against the order of nature. 39 commits an offence, and is liable to imprisonment for life and in any case to imprisonment for a term of not less than thirty years. (2) Where the offence under subsection (1) is committed to a child under the age of eighteen years the offender shall be sentenced to life imprisonment.' From the above provision, the important ingredients to be proved by the prosecution include penetration and against the order of nature. But also, it must be proven that the person who committed the offence is the one standing charged, in this case, the appellant. It is trite law that in sexual offences the best evidence is that of the victim. See the landmark case of Selemani Makumba v.R [2006] TLR 379, Mohamed Said v, R (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019) and Jackson Simon Daudi v, R (Criminal Appeal No. 621 of 2021) [2024] TZCA 415 (7 June 2024). The victim testified that he was penetrated in his anus. In his own words, he said that 'aUniingiza dudu lake la mkojo niliumid. The word 'dudu/ is now clarified in numerous decisions in our jurisprudence to mean the penis. In the case of Hassan Kamunvu v. R (Criminal Appeal 40 No. 227 of 2016) [2018] TZCA 259 (21 August 2018), the Court stated that; '.....by the victim referring to a dudu, PW1 was simply referring to the appellant's penis. By saying that 'anaingiza dudu lake kwenye mkundu wangu' he simply meant the appellant inserted his penis into his (PW1 's) anus.' Therefore, the victim's words simply meant the penis was inserted into his anus, The victim’s testimony was corroborated by PW2, the doctor who examined him and found bruising, blood, and uncontrolled waste coming from his anus, which she explained typically occurs due to penetration by a blunt object. Also, PW1 and PW4 examined the victim and observed bleeding and the presence of waste coming from his anus. Considering the testimony of the victim, PW1, PW2, and PW4, it is evident that the victim was subjected to penetration against the order of nature. Regarding who committed the offence, the victim indicated that it was the appellant, stating that they were alone in the house during the 4.1 incident. The victim's mother returned only after the appellant had completed the act of brutality having been called by the appellant. As noted by Ms. Florence, the appellant did not cross-examine the victim, which implies an implicit acceptance of the credibility of the victim's testimony as earlier discussed above. See also the case of Tumaini Yared Mtoro v. R (Criminal Appeal No. 218 of 2022) [2024] TZCA 23 (9 February 2024). PW4 did not witness the incident, but she testified that she left the victim with the appellant and within an hour appellant followed her at the traditional ceremony claiming that the victim was sick while she left her in good health. She stated that the appellant told her not to tell anyone about the victim's condition. In his defence, the appellant did not deny being with the victim on the fateful day, nor did he contest following PW4 while she was at a traditional ceremony to inform her that the victim had soiled himself. What he denied was that he did not sodomise the victim; instead, he stated that while he was home alone with the victim, he was visited by a friend who wanted to take him somewhere by using the appellant 42 motorcycle, leaving the victim asleep. When he returned, he found the door open and the victim crying while he had soiled: himself. The appellant also testified that he had grudges with PW4, but clarified that these disputes had been resolved. Thus, it cannot be argued that the appellant was framed because of this conflict, as he admitted it was settled. Moreover, if there had indeed been ongoing animosity, it would have surfaced during PW4's testimony, yet the appellant did not ask any questions suggesting they were still at odds. Upon examining the appellant's defence, it does not convincingly suggest that he was not the one who committed the offence against the victim, as it is clear that only he and the victim were at home that day. The appellant claims he left the victim asleep and, upon returning, found him soiled and crying. However, he did not specify how long he had been away. Under normal circumstances, if the victim's condition was merely a matter of soiling himself, why didn't the appellant, as the guardian, handle it himself instead of going to inform PW4, who was attending a celebration? 43 Besides, the appellant was responsible for PW5's care while PW4 was away, placing the child's safety in his hands. If the appellant had truly left, as he claimed, why didn't he take the child to the mother instead of leaving the young child alone? The records indicate that the ceremony location where the mother was attending was not far from their home. Furthermore, when he approached the mother, he advised her not to discuss what had happened to PW5 with anyone at the ceremony. What was his intention in prohibiting her from speaking about it? Not only that but also, the appellant confessed to committing the offence. Despite complaining about the failure to call his aunt to confirm whether he made such statements, the inquiry revealed that the confession was recorded voluntarily and by legal procedures. This confession is corroborated by the testimonies of PW5 and PW4, confirming: that it was the appellant who committed this offence. In the case of Mohamed Haruna Mutupeni & Another v. R (Criminal Appeal No 259 of 2007) [2010] TZCA 141 (4 June 2010). The Court of Appeal stated that; 44 ' The very best of the witness in any criminal trial is an accused person who freely confesses his guilty'. An examination of the caution statement reveals the appellant's account of what transpired when he was alone with PW5, which aligns with the truth of the incident. While it's expected that the appellant would defend himself to avoid conviction, the undeniable reality is that it was the appellant who sodomized PW5 and no one else. Given the above discussion, I find no reason to differ from the trial court's finding that the prosecution successfully proved its case beyond a reasonable doubt. The appellant's defence failed to shake the credibility of the prosecution's witnesses. Just as the previous grounds lacked merit, I find the same for this one. For the reasons outlined above, I find that the appeal lacks merit and therefore dismiss it in its entirety. It is so ordered. Dated at Mtwara this 15th August, 2024. M.B aze Judge 45 Court: Judgement delivered today in the presence of Ms. Florence Mbamba State Attorney and the appellant. M.B Mpaze Judge 15/8/2024 46