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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB - REGISTRY) AT MOROGORO CRIMINAL APPEAL NO. 17303 OF 2024 (Originating from the Judgment of the District Court of Kilosa dated 26"' September 2024 in Criminal Case No. 10096 of 2024) MUSSA LUCAS KULWUILA @SELE APPELUNT VERSUS THE REPUBLIC RESPONDENT JUDGMENT 13/11/2024 & 05/12/2024 KINYAKA, J.: The appellant was prosecuted and convicted of the offence of Unnatural Offence contrary to section 154 (1)(a) and (2) of the Penal Code Cap 16 R.E. 2022 by the District Court of Kiiosa in Criminal Case No. 10096 of 2024. In its charge sheet filed at the trial court, the prosecution alleged the appellant on 12'*^ day of April 2024 at Manzese A, Kilosa Town Area within Kilosa District in Morogoro Region, did have rarnal knowledge with SAK a girl aged 10 years old against the order of nature. The prosecution evidence at the trial reveal that on 12'*' April 2024 when PW2 (the victim) was going to school with PW3 and another boy who was 1 * unknown to her, the appellant appeared in front of them while talking on a phone. He called her and told her that she should go to pick Rehema. PW2 asked If It is Rehema John, the appellant replied in the affirmative. The appellant told PW2's colleagues whom were with her that he was in need of her. The appellant tied her, showed her a knife and shattered her. The appellant thereafter carried the victim to his room. When they reached there, he undressed his clothes, then he undressed the victim by force, applied oil on his penis and then inserted his penis at the victim's anus. The victim felt pain, she shouted but the appellant insisted that he will kill her. The victim kept on shouting but no one appeared to rescue her. Later on,the appellant told the victim that he didn't quench his sexual desire. He thus added oil on his penis and went on sodomising the victim. Upon satisfying his desire, the appellant told the victim that he should give her a phone and money, but she refused. The appellant then dressed and told the victim that he was going outside to see if there is anyone, and ordered her to go to school. He told the victim that he should pass by his chips shop to take some chips on her way back from school. The victim did not go to school but went home and informed her grandfather (PW4) on the incident who Informed the victim's father (PWl). The victim, 2 PWl,PW4,and PW5 went to the house where the incident occurred but they did not find the appellant. They reported the matter at the victim's school and police. The victim was medically examined by PW6, who found the victim's anus opened and had cut at what he termed as six o'clock and twelve o'clock. He also found that there was some blood, bruises, with labia majora and qoute (feaces). The medical examination report (PF3) was tendered in evidence and marked Exhibit PI to prove that the victim was examined and her anus was found penetrated. Samples of the sperms found at the victim's anus were collected by medical doctor at Kilosa hospital and the swab specimen from the accused's mouth was collected by PWIO, stored by PWll who produced the register book of the specimens admitted in evidence as Exhibit P2. The specimens were handed over by PWll to PW12 who submitted the same to PW13, the Chemist who conducted laboratory test. Upon receipt of the specimens, the letter submitting the samples (Exhibit P3)and Form PF 180(Exhibit P4), P13 confirmed as evidenced by the DNA report (Exhibit P4) that the samples taken from the victim and the accused resembled. In his evidence, the appellant who testified as DWl informed the trial court that he closed his shop at 23:00 hours on 1^ April 2024 then got heavily drunk. He was awake on 12"^ April 2024 and found himself at the police station. He did not know the reason the victim named him as a person who sodomized her. He did not know what happened in between. He prayed for the court to find him innocent, as he did not know what happened due to the influence of alcohol. After the trial court heard the thirteen prosecution's witnesses and one defence witness, it was satisfied that the case was proven by the prosecution beyond reasonable doubt, convicted the appellant of the offence charged and sentence him to serve life imprisonment in jail. Discontented with the conviction and sentence, the appellant filed before this Court a petition of appeal and later on an amended petition of appeal containing nine grounds of appeal, which I reproduce herein below; 1. That the learned trial magistrate erred in law and fact by infringing section 127(2)of the Evidence Act, Cap. 6 R.E. 2022. Since the victim PW2 and PW3 is a child of tender age as all procedures were not followed as required by law and the court did not satisfy itself as the Intelligence of the witness to speak the truth; 2. That the learned trial magistrate erred in law and fact by convicting the appellant while erroneously failure to assess, evaluate and analyze the whole evidence of the prosecution witnesses in order to arrive in the fair decision; 3. That the prosecution did not prove its case beyond reasonable doubt; 4. That the learned trial magistrate erred in law and fact by failing to consider the defense of the appellant neither giving reasons for disbelieving his evidence before conviction; 5. That the trial magistrate erred in law and fact by holding a contradictory evidence adduced by PW 10 and PW 11; 6. That the trial magistrate erred in law and fact by holding evidence of PW 10 which was not credible; 7. That trial magistrate deliberately misdirect himself for not taking into account that, the key element of rape offences that is penetration was not proved to the standard required; 8. That the learned trial court magistrate erred In law and fact to convict the appellant relying on exhibits PHII, PHIII, and PHIV which were tendered and admitted in the court without giving the appellant the right to cross- examine; and 9. That the trial magistrate erred in law and fact to rely on his conviction on the evidence of PW13 without taking into account the fact that the chain of custody of the purported specimen has completely broken. When the appeal was called on for hearing, Mr. Mkilya Daudi, learned advocate appeared under legal aid arrangement to represent the appellant. The respondent was duly represented by Ms. Vestina Masalu, learned state attorney. The Court granted the parties' prayer for the appeal to be canvassed In writing. Mr. Mkilya submitted In support of the first ground that the trial court did not comply with the requirement of section 127(2) of the Evidence Act, Cap. 6 R.E. 2022 hereinafter, the "Evidence Act" by Its failure to conduct a brief test to verify PWl's and PW's competency to testify and understanding of the meaning and nature of oath. He relied on the decision In the case of Mtandi Nasoro v. The Republic, Criminal Appeal No. 201 of 2019 (CAT) (unreported). He contended to have been aware of the amendment of section 127(2) of the Evidence Act by the Legal Sector Laws (Miscellaneous Amendments) Act 2023 In which It provides that the failure the evidence of a child of a tender age to meet the requirement under section 127(2) of the Evidence Act would not lead to Inadmlsslblllty of the child's evidence. However, he stated, the present matter did not follow the procedure as the court should ask a child of tender age a few pertinent questions so as to determine whether or not the child understands the nature of oath. He argued that if the child responds in the affirmative then he or she wili give evidence on oath or affirmation, but If she or he does not, she or he will be required to promise to tell the truth and not lies. He submitted that the trial magistrate did not record the question posed to the children and their responses If they understood the nature of oath but only recorded that the children, promised to teii the truth and not iles. He reiied on the decisions in the cases of Issa Salum Nambaluka v. Republic, Criminal Appeal No. 272 of 2018 [2020] TZCA 10, Mohamed RamadhanI @Kolahlli v. The Republic, Criminal Appeal No. 396 of 2021 (CAT)(unreported). He submitted in support of the 3"^ and 4*^ grounds that the prosecution did not prove its case beyond reasonable doubt and the learned trial magistrate erred in iaw and fact by failing to consider the defense of the appeliant and failed to give reasons for disbelieving his evidence before conviction. Supporting the 5''' ground, he submitted on the contradictory evidence of PWIO and PWll that PW 10 testified that on IS''' April 2024, he sent the police officer H3147, COPLO HEMED with the specimens to the National Chemist office for examination, while PWll testified that he received the said specimen from PWIO for storing the specimen of the victim. He argued that the contradiction goes to the root of the matter which entitle the accused person with an acquittal relying on the decision of the Court of Appeal of Kenya In the case of Augustine Njoroge RItho @Chabah v. Republic, Criminal Appeal No. 99 of 1986 and that of the Court of Appeal in the case of Mohamed Said Matula v. Republic(1995)TLR 3 and John Glikola V. R, Criminal Appeal No. 31 of 1999 CAT (unreported). In respect of the sixth ground, he contended that the evidence of PWIO was not credible upon PWlO's testimony that he took four swabs from the accused mouth in the presence of the accused's sister, contrary to section 12(1) of the Human DNA Regulation Act No. 8 of 2009, hereinafter the"DNA Act" for being unauthorized person. He complained of PWlO's testimony that the victim's specimen had been taken by Doctor at Kilosa Hospital which created serious doubt in his evidence. He submitted in support of the seventh ground that there was no proof of penetration which is a key element of the offence of Rape, including the evidence of an expert witness, PW6. Though he agreed with the principle that the best evidence in rape cases comes from the victim, but he argued that the principle does not apply without consideration of the circumstances of the case as it was discussed in the case of Fahid Khalifa v. Republic, Criminal Appeal No. 573 of 2020 CAT. He contended in support of the eighth ground that the trial court erred to rely on Exhibit PHII, PHIII and PHIV which were tendered and admitted in the court without giving the appellant the right to cross-examine relying on section 146(2)of the Evidence Act and the cases of Gift Mariki and Others V. Republic, Criminal Appeal No. 289 of 2015 (unreported) and Ramadhani Seifu @ Baharia and Others v. Republic, Criminal Appeal No. 221 of 2010. In support of the ninth ground, Mr. Mkilya submitted that the chain of custody of the purported specimen was completely broken as there was no chronological documentation and/or paper trail, showing seizure, custody, control, transfer, analysis and disposition of evidence, be it physical or electronic. He contended that the idea behind recording the chain of custody in to establish that the alleged evidence is in fact related to the alleged crime rather than for instance having been planted fraudulently to make someone appear guilty. He complained that there was no exhibit register book, OB book, Form No PF 221, Form No. F PF 118 and Form No. 16 produced at the trial court. He argued that the same contravened Police General Order(PGO) No. 229 Paragraph 2, section 38 of CPA and section 38 of Police Force Act. He relied on the cases on the case of Republic v. Toto Jonathan @ MhenI Criminal Session No. 148 of 2015 between (unreported). He finally prayed for the appeal to be allowed and the accused person to be released from jail. Ms. Masalu opposed the appeal. She submitted that by not arguing the fourth ground of appeal, the appellant impliedly abandoned the same. Against the first and second grounds, she submitted that the Legal Sector Laws (Miscellaneous Amendments) Act, 2023 amended section 127 of the Evidence Act by adding subsection 7 which provides that noncompliance with section 127(2)of the Evidence Act would not render the evidence of the child inadmissible. She relied on the decision of the Court of Appeal in the case of George Jonas LesUwa v. Republic, Criminal Appeal No. 374 of 2020 [2024] TZCA 25P which observed that the evidence of a child of tender age 10 should not be discarded for flimsy reasons without proof that something Is lacking that affects the quality and credibility of such evidence. Against the S"' ground, she submitted that the testimonies of PWIO and PWll do not contradict each other as on page 14 and 18 of the proceedings, PW 10 testified that he ordered Copio Hemed to send the specimens to the government chemist. She submitted that since PW 11 was the store keeper then he was the one who handed over the specimen to Copio Hemed. She contended against the sixth ground that it is not true that the police are not allowed by law to extract specimen from the accused due to clarity under section 12(1) of the DNA Act that the inspector is not a police inspector. Against the seventh ground, she submitted that penetration can be proved when the testimony of a specialist is corroborated with that of the victim as stated by the Court of Appeal in the case of Safinati Simon Ndekoya @ Mdoka V. Republic, Criminal Appeal No. 376 of 2020[2024]TZCA 213(21 March 2024). She argued that the evidence of PW6 was corroborated with that of PW2 to prove penetration to the required standard. She argued further that the words that the anus were open indicates that some thing 11 entered into when that piece of evidence is corroborated with the evidence of PW2. She concluded that it was the appellant's penis which cause a hole. She resisted the eighth ground by submitting that the record is clear that the appellant was not denied any of his right including right to cross-examine. Ms. Masaiu admitted that the OB and exhibit register were not produced at the trial court. However, she argued, the evidence of PWIO, PWll and P13 elaborate how the specimen changed hands. She contended that although chain of custody can be established by documents as held by the Court of Appeal in the case of Paulo Maduka and others v. Republic, Criminal Appeal No. 110 of 2007 (unreported), the documentation is not the only requirement in dealing with exhibits as it held in the case of Chacha Jeremiah Murlmi Others v. Republic, Criminal Appeal No. 551 of 2015 [2019] TZCA 52 (4 April 2019). She contended that the exhibit dealt with were specimens from the victim and the accused which were taken from the victim's anus and mouth respectively. She was of the view that it was difficult to temper with those kinds of exhibit as if the accused's specimen was tempered with, it is obvious the outcome of the test would exonerate the accused relying on the case of Chacha Jeremiah Murlmi Others v. Republic (supra). She added that the circumstances permitted the trial 12 ^ court to safely receive the evidence despite of the nonproduction of the register book and OB. She concluded by praying for the appeal to be dismissed in its entirety and the decision of the trial court be upheld. The appellant's rejoinder submissions were a mere reiteration of his submissions in chief. The closure of the parties' submissions entities this Court to decide whether the decision of the trial court is incorrect based on the appellant's grounds of appeal. Contrary to the course taken by the parties, I will determine all ground of appeal separately. I will begin with determination of the first followed by the fifth, sixth, seventh, eighth and ninth grounds, and finally the fourth, second and third grounds of appeal. I should point out at the onset that the version of the appellant's submissions in chief filed on the online system consolidated the third and fourth grounds while the fifth ground was argued separately. I therefore do not find that the appellant impliedly abandoned the fourth ground of appeal as argued by Ms. Masalu. 13 The first ground is a complaint that the trial court erred to receive and rely on the evidence of PW2 and PW3 taken contrary to section 127(2) of the Evidence Act. Indeed, my reading of the proceedings of the trial court on pages 3 and 4 reveal that the trial court did not comply with the requirement of section 127(2) of the Evidence Act. However, as rightly pointed out by both Mr. Mkilya and Ms. Masalu, section 127(7)of the Evidence Act introduced by section 32 of the Legal Sector Laws (Miscellaneous Amendments) Act No. 11 of 1^ December, 2023 provides that failure by a child of tender age to meet the provisions of subsection (2)shall not render the evidence of such child inadmissible. What is important is for the trial court to be satisfied that the child of tender age is credible and reliable and that her testimony is nothing but the truth. Not only that the above amendment permits admissibility of the evidence of the child of tender age despite noncompliance of section 127(2) of the Evidence Act, but also section 127(6) of the Evidence Act allows the Court to enter conviction based only on the evidence of the victim, even if uncorroborated, if the court is satisfied that the victim speak nothing but the truth upon assessing his/her credibility. 14 I have thoroughly read the testimonies of PW2 and PW3. PW2 promised to speak the truth. She was consistent and explained In detail the Incident from when she left home, taken by the appellant, and who sodomized her. She explained the place, and the manner she was sodomized by the victim, the threats and the conversation prior, during and after the incident. Even when she was cross examined by the appellant, PW2 remained unshaken. Further, the testimony of PW3 was also clear and corroborated the testimony of PW2 that they met a man on their way to school who called PW2 and went away with her. The appellant never cross examined PW3. Again, the testimonies of PWl, PW4, PW5, PW7, and PW8 were similar on what they were told by the PW2 about the Incident. The testimonies matched the testimony of PW2. In the case of Felick Kilipasi v. Republic, Criminal Appeal No. 260 of 2021 [2023]TZCA 17941(13 December 2023), unlike In the present suit where at least the trial magistrate recorded that PW2 and PW3 promised to tell the truth. In that case, the trial magistrate while conducting the purported voire dire on PW2, the child of tender age, recorded that the examination was conducted "off record". Relying on the case Wambura Kiglnga v, 15 Republic, Criminal Appeal No. 301 of 2018 (unreported), the Court appeal held that: ''Even in this case, being guided by the above authority, we think, the circumstances are in aii fours with the above case. Much as the so caiied voire dire test was mistakenly conducted being not a requirement ofthe iaw, in the sense thatsection 127(2)ofthe Evidence Act was not compiied with, stili section 127(6) of the same Act can salvage the situation since PW2gave evidence on oath and was assessed to be a credible witness who could tell nothing but the truth. In this regard, we find that the witnesses' evidence was properly taken and he told the truth to the court and, thus, this ground lacks merit and we hereby dismiss it. Based on the above observations, I hold that PW2 was a credible witness and her evidence was reliable for she also promised to tell the truth. Her testimony was nothing but the truth. I agree with the observation of the trial court on page 6 of the judgement that the evidence of PW2 was very reliable. I dismiss the first ground for lack of merit. The fifth ground is a complaint that the trial magistrate ignored the contradiction in the testimonies of PWIO and PWll. I agree with Ms. Masalu that contrary to the appellant's submissions, there were no contradictions in the testimonies of PWIO and PWll. On page 14 16 of the proceedings, PWIO testified that he sent the police officer H3147 Copio Hemed on 15^ April 2024 to the government chemist for examination of the specimens. PWll, an exhibit keeper informed the trial court as reflected on page 18 of the proceedings that on 15^ April 2024 he was ordered to hand over the specimens to D/Copio Hemed to take them to Dar es Saiaam. In my considered opinion, to order someone to take the samples somewhere is different from handing over the samples to that person. I dismiss the fifth ground for being unmerited. The sixth ground is an attack to the trial court to rely on the evidence of PWIO which was not credible. Mr. Mkilya argued that PWIO was not a qualified person to take swab from the appellant as per section 12(1) of the DNA Act. He added that there was no evidence on record that the victim's specimen was taken by a Doctor at Kilosa Hospital. While I find it correct that there was no evidence from any other witness including PW6 of collection of specimens of the victim at Kilosa Hospital, the absence of such evidence from another witness does not make the evidence of PWIO incredible. 17 Again, the testimony of PWIO on page 14 of the proceedings was very clear that he was a forensic officer and a police officer of a rank of Inspector responsible for admission of cases concerning laboratory investigation, and taking specimens for laboratory examination as prescribed under section 12(1) of the DNA Act. I hold that PWIO was qualified to collect the samples from the appellant as per section 14(2) of the DNA Act read together with sections 12 and 13 of the DNA Act. Section 14(2) of the DNA Act provides that any medical practitioner or police officer shall be a sampling officer under this Act. I do not find merit in the ground and I dismiss the same. In the seventh ground, the appellant faulted the decision of the trial court for its failure to consider that the key element of penetration was not proved. I have read the testimony of PW6, the medical officer on page 8 of the proceedings. I agree with Mr. Mkilya that in her oral testimony, PW6 did not state expressly that the victim's anus was penetrated. However, PF3(Exhibit PI) confirmed that the victim's anus was penetrated. Despite the aforesaid findings, I have noted some anomalies in the testimony of PW6 and Exhibit PI. 18 I will begin with what is reflected on page 8 through to 9 of the proceedings. I have found that there is no record as to how Exhibit PI was produced and admitted. PW6 neither spoke of the PF3, never identified and never tendered the same in evidence. There is no record that the court admitted the same in evidence as Exhibit PI. But PF3 is found in the trial court file marked Exhibit PI. Again, there is no record that the appellant was given the right to cross examine PW6. The record on page 9 indicates that after PW6 gave her evidence in chief, the case was adjourned and on the same date, the trial court proceeded to take evidence of PW7 without according the appellant the right to cross examine PW6. Articulating the accused's right to cross examine the adverse party, the Court of appeal on page 18 of its decision in the case of Pantaleo Teresphory v. Republic, Criminal Appeal No. 515 of 2019 [2023] TZCA 47(23 February 2023) quoted with approval its wisdom in the case of Ex-D. 8656 GPL Senga Idd Nyembo and Seven Others V. Republic, Criminal Appeal No. 16 of 2018 (unreported) wherein it was expounded that: We must emphasize that a party to court proceedings has the right to cross-examine any witness of the opposite party 19 regardless of whether the witness hasgiven his testimony under oath or affirmation (as the case may be) or not This right is a fundamentalone to anyJudicialproceedings and thus the denial of it wiii usually result in the decision in the case being overturned. Unless, a party has waived his right to cross- examine cannot be taken as iegai evidence unless it is subject to cross examination. Consequently, the testimony affecting a party cannot be the basis of decision ofthe court unless the party has been afforded the opportunity of testing the truthfulness by way of cross examination (See Kabuiofwa Mwakaiiie & 11 Others v. Republic(1980) TLR [Emphasis Added] It clear that the denial of the right to cross examine is tantamount to the denial of the appellant's right to be heard. This would have entitled me to nullify the whole proceedings and order a retrial upon finding that the prosecution managed to prove the case against the appellant beyond reasonable doubt. However, there are two aspects that prevented me from nullifying the entire proceedings. The first is that in sexual offences, the best evidence comes from the victim [See the case of Selemani Makumba v. R.(2006) TLR 379]. Having the foregoing position in mind, I firmly hold that the evidence of a medical officer was not necessary though it would corroborate the evidence of the victim. 20 Certainly, In the absence of the expert evidence, a sexual offence would still be proven like in present matter, as I have held in the first ground above. The other aspect is the existence of Exhibit PI whose presence Is not supported by the record. It is unknown as to the manner in which the same was produced and admitted by the trial court as Exhibit PI. The errors entitles me to expunge both the testimony of PW6 and Exhibit PI. Even of the same remained in the record, it would not have any evidential value. Based on my above position, I expunge both the evidence of PW6 and Exhibit PI for being admitted contrary to law. Undoubtedly, upon its expunction from the court records, the testimony of PW6 and Exhibit PI cannot be used to form a basis of this Court's findings in the present appeal as the same are rendered inexistent. However, despite my expunction of the testimony of PW6 and Exhibit PI, I do not agree with Mr. Mkilya that the ingredient of penetration was not proven. I find that the element of penetration was proven by PW2, the victim. PW2 testified on page 3 of the proceedings that: 21 he then tied me he shown me knife he shatter me, he carried me up to his room, when we reached there he undressed his ciothiers, then he undressed me by force, akapaka mdudu wake wa kukojotea mafuta, then he inserted his penis at my anus,ifeitpain,Ishouted but he toidme that he wiii km me,I wenton shouting butno one came,he iater toid me that he never sensed happy, he then added oii and went on raping me at anus, when he finished his desire he toid me that he shouid give me phone and money, i refused to receive those gift, there after he dressed his ciothes and toidme that he was going outside to see ifno one, and he order me to go atschooi ''[Emphasis added] Despite the fact that in absence of the evidence of PW6 and Exhibit PI, the evidence of PW2 is uncorroborated as to the ingredient of penetration, I have held in respect of the first ground that PW2 was a credible witness, her testimony was reliable, and she spoke nothing but the truth. Her evidence could be relied upon without any corroboration as provided for under section 127(6) of the Evidence Act. In my considered position, the ingredient of penetration was sufficiently proven by PW2. In view of the above observations, I dismiss the seventh ground of appeal. 22 The eighth ground attacks the trial court to rely on Exhibits P2, P3 and P4 which were admitted without according the appellant the right to cross examine. The proceedings on page 18 when Exhibit P2 was admitted, page 21 when Exhibit P3 was admitted, and page 22 when Exhibit P4 was admitted, reveal that the appellant did not object to the admission of the said documents. Again, the proceedings reveal on pages 18 and 23 that the appellant duly cross examined PWll and PW13, respectively, after the witnesses completed their evidence in chief and tendered the exhibits. I find section 146 of the Evidence Act and the cases cited to support the ground of appeal are misplaced and irrelevant to the circumstance of the proceedings of the trial court. I dismiss the eighth ground for lack of merit. The appellant's complaint in the ninth ground of appeal is the trial court reliance of chain of custody of the specimens which was broken. Although I agree with Ms. Masalu that an oral account of witnesses is sufficient to establish the chain of custody even in absence of documentary proof, I agree with Mr. Mkilya that chain of custody was broken. 23 PWIO testified that the sample from the victim's anus were collected by a Doctor at Kilosa Hospital. However,the testimony of PW6 on page 8 through to 9 of the proceedings does not speak of collection of samples from the victim. No witness was presented by the prosecution at the trial court to testify that he/she collected the samples from the victim's anus. It means that the samples were found in the hands of PWIO without any account be it oral or documentary as to the person who collected the specimen from the victim, the time, place of collection, the person who handed the same to PWIO, the manner of their handling, and the mode they were submitted to PWIO. As the confirmation of resemblance between the specimens collected from the appellant and the victim was established upon laboratory examination of the two samples, I hold that in the absence of a clear account of the chain of custody of the specimen of the victim from the point of collection, the entire evidence lack evidential value. I therefore do not accord weight in the evidence of PWIO, PWll, PW12 and PW13 and Exhibits P2, P3, P4 and P5 relating to the sample alleged to have been collected from the victim. 24 I hold that the chain of custody of the victim's specimen was broken. In absence of the victim's specimen, there can never be a report made by PW13 through Exhibit P5 that was issued after comparison of the victim and the appellant's specimens. The ninth ground of appeal is merited and allowed. In the second, third, and fourth grounds of appeal, the appellant complained that the trial magistrate failed to assess, evaluate and analyze the prosecution evidence; failed to consider and give reasons of it's disbelieve of the defence evidence; and the prosecution did not prove its case beyond reasonable doubt. Contrary to the appellant's complaint in the fourth ground that the trial court did not consider the defence evidence in arriving at its decision, on page 5 of the judgement, the trial court duly considered the evidence of DWl by holding that: " the evidence adduced by PWl,PW4andPW8, who went to trace the accusedperson after the matter reported to them, after reached at his room he was not there, they went at his business piace, when he saw them he tried to run away but they chased him he hides himseifatpig pen they managed to arrest him there atand when asked whyrun aftersaw them he hadno answer, so his allegation that he was drunk and found himself at 25 police station has no leg to stand as he failed to calleven one witness to testify on those allegation^ therefore his defense was weak, because he never told the court on why he saw those witnesses while tracing Mm ran away Ifnot running from liability.''[Emphasis added]. The above excerpt of the holding of the trial court entitles me to find no merit in the fourth ground of appeal. Regarding the appellant's complaint in the second ground of appeal, I find that the trial court's reliance of the testimonies of PW6and Exhibit PI; PWIO, PWll, PW12, PW13, and Exhibit P5, was erroneous. My position is based on my holding in respect of the ninth ground that the chain of the specimen alleged to be collected from the victim was broken. It means the evidence of the witnesses and documentary evidence establishing resemblance of the specimens after the laboratory examination conducted to compare the specimens of the victim and the appellant could not establish the account of the movement and handling of the victim's specimen culminating to the laboratory examination by PW13 and Issuance of Exhibit P5. However, I am at one with the trial court's finding that PW2's evidence was very reliable. In the circumstance, as I have held in respect of the first and 26 seventh issue above, I hold that PW2's evidence was reliable and could sustain conviction even if it was not corroborated. Based on the above observations, the second ground of appeal is partly allowed that the trial court failed to analyze the evidence PW6, PWIO, PWll, PW12 and PW13 and Exhibits P2, P3, P4 and P5 for failure to establish the chain of custody of the specimen collected from the victim. However, the trial court was correct to find PW2's evidence very reliable and which I have held that could be relied to sustain conviction. My determination of the first, and seventh grounds of appeal, warrants me to hold against the third ground of appeal. As the first appellate court, this Court is empowered to re-evaluate the evidence on record and come up with findings even if the trial court had not properly evaluated the evidence [See the case of Gaudence Sangu v. Republic, Criminal Appeal No. 88 of 2020 [2022] TZCA 784(7 December 2022) on page 11]. I have held that the trial court acted properly to hold that the evidence of PW2 was very reliable. I have held in respect of the seventh ground that the element of penetration was proven by PW2.1 have also held In respect of the first ground that the evidence of PW2 was reliable in terms of section 27 127(6) of the Evidence Act which could be reiied upon even without corroboration. Although PW3 did not witness PW2 being sodomized by the appellant, her evidence that the victim was snatched by a man on their way to school, and that they waited for the victim but she did not return, corroborate the testimony of PW2 that she was taken by the appellant who ended up sodomizing her. The testimonies of PWl, PW4, PW5, PW7, and PW8 were ail similar on the narration of PW2 about the incident and which matched PW2's testimony. The evidence justified the trial court as well as this Court to find PW2 was credible and reliable witness and she spoke nothing but the truth. The fact that the appellant ran away from his shop after he saw PWl, PW2, PW4, PW8 and PW9 heading to his office was duly testified by PWl, PW4, PW8 and PW9. I have drawn adverse inference on the appellant's conduct to run away after he saw PWl, PW2, PW4, PW8 and PW9 heading to his office on the same date of the incident. Running away is a relevant fact to prove his attempt to escape from liability as provided for under section 10(2) and (4) of the Evidence Act and the articulation of the Court of Appeal In the case of Jibril Okash Mohamed v. Republic, Criminal Appeal No. 331 of 28 ^ 2017[2021] TZCA 13(11 February 2021)on page 44. The appellant's act of running away corroborated the evidence of PW2 that he committed the offence as the conduct is incompatible with innocence. Moreso, I agree with the trial court that the defence evidence through DWl had no legs to stand. His defence that he was drunk from the mid night on 1=* April 2024 and found himself at the police station on 12^^ April 2024 when woke up, and that he did not know what happened in between, is evasive denial. The same did not cast doubt on the prosecution case through the evidence of PW2 that he sodomized her on 12^ April 2024; and PWl, PW4, PW7, PW8 and PW9 that he was apprehended on the same day after his attempt to run away. It is from the above analysis, I find the third ground of appeal unmerited and I dismiss the same. In totality of my above findings, despite holding that the chain of custody of the specimen from the victim was broken, I hold that the prosecution managed to prove the offence of Unnatural Offence against the appellant. In consequence, I uphold the conviction of the trial court meted against the appellant and the sentence imposed thereon. 29 It is so ordered. Right of appeal to the Court of Appeal fully explained. DATED at MOROGORO this 0?^ day of December 2024. H. A. KINY^KA JUDGE >51 -v-V 05/12/2024 ■iff > / 30